Legal Advice Important In Mediation For Separating Couples

The Ministry of Justice (MoJ) announced in November 2014 that separating couples would get their first mediation session funded for both parties, as long as one of them is eligible for legal aid. On the back of this move there is an argument that more needs to be done to encourage separating couples to pursue mediation.

Mediation is a non-adversarial process divorcing couples enter into voluntarily that is overseen by a trained mediator. It is not suitable in all divorce cases but has advantages over court proceedings such as being quicker and cheaper. Couples should note that it is not necessarily a substitute for legal advice itself but it is a way to communicate and manage the process of separation to a conclusion without the need for court proceedings. Most people that use mediation also receive independent legal advice from a family lawyer.

'Gay Cake' Leaves Bitter Taste For Disputing Parties

The ‘Gay Cake’ row that erupted earlier in 2014 has rumbled on unresolved for some time. The Equality Commission in Northern Ireland, which oversees equality and discrimination law, looks set to litigate the case in order to clarify to what extent businesses can refuse service to customers on certain grounds.

The case is nuanced in that the business involved apparently does not refuse to serve customers on particular grounds but refused to produce goods (a cake) which promoted an event which contradicted the beliefs of its owners. It remains to be seen if the court considers this difference material for the purposes of equality legislation.

New Food Labelling Standards Now In Force

EU plans to create a universal labelling standard for food products came into force from December 2014 as the Food Information for Consumers Regulation (or EU FIC) became part of UK law.

The following 14 allergens must be emphasised to consumers on the product’s ingredients list or menu: celery, cereals containing gluten, crustaceans, eggs, fish, lupin (in flour), milk, molluscs, mustard, nuts (grown on trees), peanuts, sesame seeds, soya, sulphur dioxide (in dry fruit, meat products, soft drinks, vegetables, wine and beer).

If a product contains any of these allergens without having informed the consumer then this could result in a fine of up to £5,000.

Forex Manipulation Fines Just The Start Of Liabilities For Banks

The Financial Conduct Authority (FCA) recently fined five banks in the UK because of system and control failures in their foreign exchange businesses. The FCA is the financial regulatory body in the UK, which supervises banks to identify risks and encourage healthy competition, providing fair treatment to clients. For the regulator these failures “undermine UK financial system and put its integrity at risk”.

What Is An E-signature And Is It Legally Binding?

In everyday language an e-signature is just a digital form of a signature but in legal language the definition is somewhat wider. An electronic signature is defined legally as data in electronic form which are attached to or logically associated with other electronic data and which serve as a method of authentication. E-signatures come in many forms including manuscript signatures that have been scanned, Personal Identification Numbers (PINs) or merely a name typed at the end of an email message.

More sophisticated types of e-signatures are digital and biodynamic signatures. Digital signatures rely on a form of encryption to authenticate messages. In this type of encryption the signing party uses a key pair (private and public key). The signatory affixes the signature using their private key, while the recipient verifies the signature with the public key and decrypts the message.

Biodynamic signatures are versions of manuscripts signatures where a special pen and pad is used to measure and record the actions of the person as they sign. A digitised version of the manuscript signature is created and can then be attached to electronic documents.

Trades Need To Work Particularly Hard To Maintain Health And Safety Standards

As we move into 2015 businesses should remain focused on ensuring the safety and welfare of their workers. The Health and Safety Executive has had a busy 2014 so businesses should be well aware of the potential for fines and criminal penalties in the event of failures. Businesses operating in the traditional trades are most vulnerable to breach of health and safety laws so should pay particular attention and seek professional advice where necessary.

Attention Required For Companies Buying Business Interruption Insurance

While fire can take a matter of minutes to destroy a building, claiming for the losses can take years if care is not taken when purchasing insurance. A simple mistake on the insurance declaration form or unclear projections on future profits can make claiming for business interruption a complex and lengthy procedure.

What Laws Apply To The Drone Invasion?

Logistics businesses worldwide are engaged in intense competition but going the extra mile to win greater customer satisfaction can incur huge operational costs. This has resulted in experimentation in the innovative use of drones for commercial purposes with Amazon leading the charge.

In the UK, usage has mainly targeted London, Liverpool, Nottingham and Cambridge. The approach seeks to replicate similar developments elsewhere such as Australia (Google) and Germany (DHL). Significantly, commercial use of drones is effectively banned in the US as the regulatory agency fleshes out a legal regime for its take-off by September 2015.

New Changes To EU Food Industry Legislation Expected In 2015

The EU is proposing changes to Regulation 882/2004, which is the EU legislation that governs food and agriculture industries, to strengthen enforcement of health and safety standards for the food industry through Europe. The proposed changes are still being negotiated and a final text is not expected until 2015. The proposed changes will affect how food standards are monitored in the UK and impact most businesses within the food industry.

Land Registry Changes Now Implemented For Restrictions On Leasehold Titles

Leasehold landlords and management companies should note the recent changes to the Land Registry’s approach to restrictions on leasehold titles. Leaseholders looking to cancel restrictions placed on the title by dissolved landlords or former managements companies can also benefit from the simplifications brought in with these changes.

In Practice Guide 19A, that came into effect in October of 2014, the Land Registry made a number of changes in regards to its practice for restrictions on leasehold properties. The guide introduced changes that will have the notable implication of simplifying and streamlining the process at the Land Registry for placing restrictions on registered leasehold titles.

Audacious Data Protection Breach Highlights Risks For Businesses

One of the UK’s largest mobile phone networks was left embarrassed after an individual managed to gain access to its confidential information. The individual, a company director, was fined for illegally assessing one of Everything Everywhere's (EE) customer databases.

Matthew Devlin, a director of three marketing and telecoms companies, gained access to the details of when EE's customers were due a mobile phone upgrade by impersonating a member of the operators’ security team during calls and emails to legitimate mobile phone distributors. He succeeded in obtaining the log-in details and password to EE's database and targeted customers with services offered by his own telecoms companies. He was fined £500, plus £438.63 costs and an £50 victim surcharge.

The case was embarrassing for EE but it also demonstrates that even large organisations with significant resources are vulnerable to breaches of data security. SMEs need to be particularly cautious as to how they protect data regulated under the Data Protection Act as significant fines exist if failings become evident.

Changes To Insolvency Litigation Funding In April 2015

The 1^st of April 2013 saw the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which introduced changes to the civil justice system, recommended by Lord Justice Jackson. The reforms to the funding of litigation included the abolition of the recoverability of conditional fee agreement (CFA) success fees and after the event (ATE) insurance premiums.

The application of these reforms was delayed in relation to insolvency proceedings but it is now clear that this exception is due to expire in April 2015. Currently, insolvency practitioners undertake litigation on behalf of creditors with the costs funded from CFAs or ATE insurance policies.

A New Twist In Trade Mark Case Of Interflora v M&S

The long-running trade mark dispute between Interflora and Marks and Spencer (M&S) has captivated brand owners and intellectual property lawyers since its early beginnings in 2008. The battle ensued after M&S’ used Interflora’s name as keywords to prompt Google adverts which did not actually contain the Interflora name or branding but took users to M&S’ own flower delivery service. The outcome has important implications for all brand owners and their competitors.

In May 2013 Arnold J, High Court judge, found in favour of Interflora by declaring that M&S was guilty of trade mark infringement for using Interfloras’s trade mark as a keyword. In the latest twist the Court of Appeal declared in November 2014 that, due to a number of errors of law apparent in the proceedings, the case must be allowed to go to appeal and remitted it for a retrial to the High Court.

Construction Businesses Must Do More To Improve Site Safety

The Health and Safety Executive (HSE) recently announced that 40 per cent of working sites failed to properly protect workers. This was found as a result of a month long inspection initiative at almost 2,000 building sites. Nearly half of these were undergoing dangerous practices, yet the HSE claims that many of these issues could easily have been prevented.

Forex Fines May Encourage Litigation Against Banks

The massive forex fines recently levied against a number of major UK and US banks are projected to have new ramifications for banking regulation and for litigation related to the fallout. Big European banking names like HSBC, Royal Bank of Scotland, UBS as well as American banks like JP Morgan Chase, Citibank and Bank of America, have been fined by the regulators, thereby adding a huge further blemish upon to public image of the banking sector.

The latest fine of £2.6 billion was collectively issued by UK’s Financial Conduct Authority (FCA) along with two regulators of USA namely, Commodity Futures Trading Commission (CFTC) and Office of the Comptroller of the Currency (OCC). Further financial damage may be incurred if third parties that suffered losses due to rigged trades seek to make civil litigation claims against the banks involved.

Southwell v Blackburn: A True Landmark Decision Or A Reminder Of Cohabiting Risks?

On 16^th October 2014, the Court of Appeal upheld a decision that an unmarried man had to pay a lump sum to his ex-partner in respect of a property they both shared. While press reports labelled this a landmark decision for unmarried couples many practitioners take a different view, believing it reinforces the precarious position cohabitants are in.

Employment Law Provides No Lifebelt For Distressed Sailor

In November 2014, a tribunal judge dismissed an attempt by a former employment lawyer, Ruth Harvey to sue both the organisers of the Clipper Round the World Race for alleged harassment and discrimination. The case centred on the claimant’s involvement in the Clipper Round the World Race, of which Sir Robin Knox-Johnson is the founder. Although the case attracted mainstream media attention due to the fame of its founder, Sir Robin Knox-Johnson who was also named in the claim in that capacity (but not personally), legally it provides a useful reminder about the limits of employment law.

Additional Damages Can Succeed Where Accounting For Profit Fails

The 2007 hit pop single Heartbroken produced by T2 and featuring the British singer Jodie Aysha, has been the subject of recent damages proceedings. The claim followed a 2013 (Patents) County Court ruling that the performer’s rights relating to the vocal track at the centre of the dispute belonged to the claimant – Jodie Aysha – and not the record companies All Around the World Recordings and ANV Records. Ms Henderson (‘Jodie Aysha’ being a stage name) had composed the song lyrics when she was fourteen years old.

How to Avoid Calamitous Christmas Parties

Employers often reward employees with office parties at the end of the year. An office party during the festive season can provide an organisational morale boost and offer a way to thank employees for their hard work during the year. It can also create a degree of social cohesion among employees by providing a glimpse of colleagues’ lighter sides in a relaxed social atmosphere.

Unfortunately, the nature of an office Christmas party is such that there also a number of legal pitfalls – especially where alcohol is concerned – which many HR professionals agree are surprisingly difficult to manage.

There Is No Need for Excessive Divorce Costs

Mr Justice Mostyn has described as “madness” a recent High Court divorce case where a couple spent almost one third of their assets on legal and expert fees. The battle over £2.9m in assets cost the couple just under £1m. From the pre-costs starting point of £2,885,000, the wife will receive 38.9% of the assets, the husband will receive 29.2% and lawyers and experts will be paid 31.9%.

Is Your Business Prepared for Winter Staff Absence?

Seasonal weather changes always seem to catch us slightly unprepared in the UK, even if we never get hit by quite the extremes that New York State has seen recently. As winter approaches, our roads become icy, trains get delayed and schools sometimes close. This causes major travel disruption and lost hours of work so it is good to know where we stand as employers and employees before it happens.

Certainty Regained over Section 20 Consultations

After a long wait, the judgment of Court of Appeal has partly overturned the controversial 2012 High Court decision in Phillips & Goddard v Francis.

The Court of Appeal has clarified the law in relation to section 20 service charge consultations required under Part 2 to Schedule 4 of the Service Charges (Consultation) (England) Regulations 2003 ("the Regulations").

Immigration checks on new tenants – another burden on Landlords or a way to beat illegal immigration?

From today private landlords in the West Midlands will be required to check that their prospective tenants are entitled to reside in the UK before renting a property to them under new rules which have come into force with the passing of the Immigration Act 2014.

The pilot scheme will run until Spring 2015 when the Government will consider whether it has been a success but the intention is that it will then roll out the new requirements throughout the country during the course of 2015.

Essex Council to Appeal Racial Discrimination Claim

A widely publicised employment tribunal case is to be appealed after the tribunal found that an employee of Essex Legal Services (ELS) was unfairly dismissed due to racial discrimination.

The employment tribunal ruled that a manager at ELS has been unfairly dismissed after unjust criticism had been leveled at her and that she had, on the balance of probabilities, lost her job because of her race.

The case attracted mainstream media attention because in the depths of the 59 page judgment it transpired that Philip Thomson, the director of ELS and the president of Lawyers in Local Government made ‘inappropriate references to Hitler’.

Will a Recent Injunction Risk Freedom of Expression?

A recent case has pitted freedom of expression against the use of an injunction which was granted to prevent the release of information from harming a child. Although the facts of the case make the judgement understandable, there are concerns that such developments in this area of media law could be detrimental to freedom of expression.

The judgment in the case known simply as OPO v MLA [2014], involved a British performing artist, MLA, who has been ordered by the Court of Appeal to put the publication of his book on hold until the issue was decided at trial.

Insurers and Policyholders Should Benefit from Tightening of Whiplash Rules

Whiplash claims have been a substantial cause of the phenomenal increase in the frequency and value of claims in personal injury litigation. Figures provided by the Association of British Insurers demonstrate that the number of dishonest whiplash claims increased by 34 per cent in 2013, with a value of £811 million.

However, there is another side to the story. Lack of objective clinical signs has facilitated a ground for many claims that are extremely hard to disprove. This has paved the way for PI firms and other parts of the claims industry to transform the value of such claims into a commodity. However, significant changes are afoot to try and stem the flow of dishonest and exaggerated claims to reduce the cost to the industry and policyholders.

Should the Human Rights Act be Scrapped?

Advocates of scrapping the Human Rights Act (HRA) put forward a number of reasons as to why this should happen, some of which are supported by a perfectly legitimate rationale. Arguments focus on principles such as national sovereignty, parliamentary sovereignty over the courts and obeying the rule of law.

The European Court of Human Rights has clashed many times with Parliament and the courts due to historical, cultural and philosophical differences in the way these principles are applied. Heavily publicised and notable instances include the laws on prisoners voting and the deportation of terror suspects. While in isolation these difficulties may foster support for scrapping the Act, there are also good reasons why it should remain. Family law in particular is heavily intertwined with the Human Rights Act and scrapping it could have serious implications for issues related to child care for example.

The Law Society has also argued against recent calls to scrap the Human Rights Act and articulated why, despite its imperfections, it is worth keeping. It also asserts that current misconceptions about the Human Rights Act and its legitimacy need to be addressed by a programme of public education and debate and by the setting up of standing committee on Human Rights.

Defamation Cases Rise in Tandem with Social Media

The sharing of information in the virtual world represents a serious potential threat to individual and business reputations. The speed of information flow is high while audiences can be large and global.

Concerns about online reputations have grown in tandem with the explosion of social media. As a result of that the number of defamation cases brought over comments made in social media has also risen significantly.

Directors Must Understand Additional Duties when Running Legal Practices

The rapid rise in popularity of alternative business structures (ABS) in the legal profession is attracting increasing numbers of non-lawyers into the managerial ranks of professional firms. It is essential that directors bringing business skills to these organisations also understand the additional duties that they are subject to when compared to normal trading businesses. The recent demise of a Cornwall based law firm highlights some of the issues directors could be confronted with if things go wrong.

New Inheritance Rules Now in Force

The 1st of October 2014 saw the coming into force of the Inheritance and Trustees' Powers Act 2014. This has significantly changed the law surrounding distribution of inheritance when an individual dies intestate. Intestate is where a person dies without leaving a will.
In particular, the new Act includes reforms that affect surviving spouses, giving them 100% of the deceased’s estate in the event of there being no children. Under the previous rules, if an estate was worth more than £450,000, the surviving spouse in a childless couple got the first £450,000, plus half of anything above that. The other half was divided among other blood relatives (the parents or, in their absence, the siblings of the deceased).
In essence, the new provisions remove wider family members from consideration, as the surviving spouse inherits the entire estate, whatever the value.

Are Increased Measures Needed to Combat Insurance Fraud?

Insurance fraud is a phenomenon that has bedevilled the insurance industry for ages and continues to engage practitioners, law enforcement and other industry players. There are various types of fraud but one or two have been particularly prevalent recently.

Typically, the majority of insurance frauds occur when claimants makes claims for personal injury or damage to a vehicle. In reality many motor claims incidents are premeditated and therefore not purely accidental. Numerous commentators, particularly in the mainstream media, succinctly refer to this practice as ‘crash-for-cash’. A disturbing development in 'cash for crash' claims has been where a driver deliberately brakes causing the car behind to crash into the rear.

Another type of insurance fraud is the attempt to obtain cheaper cover through misrepresentation of personal circumstances such as past convictions. Accordingly, there has been an active campaign to nip this fraud in the bud. As recently as September 2014, police arrested 11 people across the UK on suspicion of false personal injury claims following referrals from insurers and the Insurance Fraud Bureau.

Parody Exception for Copyright Infringement Now in Force

On October 1^st 2014, changes to UK intellectual property law came into force which permitted for the first time the use of copyrighted works for parody.

Previously, if a parodist had taken a substantial part of a copyrighted work, that individual could not rely upon any direct parody defence in order to avoid liability for copyright infringement. In practice, this meant that any person seeking to engage in this type of activity required a licence from the copyright owner.

Enforcing Arbitration Awards in the English Courts

The final award in arbitration should mark the end of a dispute but more often than not the real battle begins when the successful party seeks to enforce it.

In Cruz City v Unitech & Ors [2014], the English High Court confirmed that a claimant could enforce an arbitral award in the English Courts by making an application under section 37 of the Senior Courts Act 1981 to appoint receivers against the foreign assets of the defendants.

Phillips v Francis - landlords breathe a sigh of relief!

It's business as usual for landlords and managing agents following the Court of Appeal decision in Phillips v Francis at the end of October. The decision was seen to be of such import and the outcome of such significant effect on residential landlords and tenants that the Secretary of State intervened in the appeal process. Thankfully and sensibly the appellate judges decided that the decision of the High Court to impose an aggregating approach on works to residential properties was incorrect.

A Rising Tide of Litigants in Person Threatens Courts’ Abilities to Offer Access to Justice

The Government’s efforts to cut the budget deficit have meant that legal aid has been slashed along with many other areas of public spending. Legal aid was costing taxpayers £2 billion per year and it was seen as a necessary target for cuts but many professionals believe that the government has failed to reform the system in turn.

Despite being regarded as superior to other European systems, the English legal system has struggled since the budget cuts came into force with many barristers in particular describing it as ‘unsustainable’. Court fees have also increased to such an extent that many ordinary people simply cannot proceed with claims. For example, claiming against a former employer can now cost £1,200 in court fees alone, a figure which some observers believe explains the 70% fall in these types of employment cases in the last year.

Family law is one area in particular where individuals are increasingly tempted to go it alone. However, specialist advice is always a better solution as this area of law is particularly complex and short term savings can come at a long term cost, whether they relate to child custody proceedings or financial settlements in divorce.

IPs Feel the Heat Over Mass Redundancies in Insolvency

The recent redundancy claims against high-street electrical retailer Comet have highlighted the issues faced by administrators making mass redundancies in insolvency. The case has also heightened political pressure on insolvency practitioners to ensure that their duties relating to employment law are properly conformed to during insolvency processes. The fallout means that, as well as facing reprimands from the regulator and financial penalties, IPs have seen the threat of criminal sanctions heightened if they get it wrong.

Financial Expertise Trumps Legal Knowledge for Directors

PwC, one of the ‘Big Four’ auditing firms, found in its 2014 annual survey of directors that only 21% of respondents believed having ‘legal expertise’ was ‘very important’ to them. Notably, directors see the need to have financial expertise as a top priority, with 93% of respondents regarding it as ‘very important’. Also sitting above legal knowledge in terms of relative importance was expertise in other areas such as human resources, racial diversity, marketing and gender diversity.

With the breadth of issues they must manage, it is understandable that directors place a number of competing interests higher up their list of priorities than legal knowledge and it is perhaps beneficial to their lawyers at the same time. However, it is still important that directors do understand some of the fundamental legal responsibilities that are inherent in their position.

Do Third Parties to Construction Contracts Have a Right to Adjudicate?

An interesting case was decided in 2014 which shed further light on whether a third party to an appointment contract for a construction project could force the contractor into adjudication proceedings.

In Hurley Palmer Flatt Limited v Barclays Bank PLC [2014] the court had to consider to what extent the rights of a third party, which are enforceable under the Contracts (Rights of Third Parties) Act 1999, could influence the decision to adjudicate.

Re X (A Child) Decision on Time Limits Good News for Family Cases

Procedural rules and time limits are an important part of the legal system. Without them cases would become unmanageable and access to justice would be considerably more expensive, slower and more difficult for ordinary people to understand.

Despite the need to address those concerns, it would be strange system if the rules were applied so strictly that outcomes were manifestly unfair, unjust or harmful to the interest of users or the wider public, particularly where children are involved.

It is not always easy to say that courts have struck the right balance but a recent family law case relating to a parental order has firmly demonstrated their ability to do so.

Tough PI Reforms to Follow Enactment of The Criminal Justice and Courts Bill in 2015

Personal injury (PI) claims have come under considerable scrutiny in the last few years and 2014 looks set to be a vital year for PI reform.

Following the implementation of the civil justice reforms last year, momentum has built to further improve the procedure for PI claims. As a consequence there has been a late but significant addition to the Criminal Justice and Courts Bill.

The Criminal Justice and Courts Bill is presently before Parliament and is expected to become law by January 2015. Clauses 49 to 53 deal specifically with PI claims. Significantly the whole claim has to be dismissed by the courts if there is any element of ‘fundamental dishonesty’ and the bill also proposes to disallow PI law firms from offering incentives.

Challenging Nightmare Neighbouring Property Extensions

The inconsistency of the planning system in the UK causes considerable grief even for property professionals. It is therefore understandable that ordinary members of the public are confused as to what is and is not allowed when developments occur that disrupt their enjoyment of their own property.

Cases occur from time to time in the mainstream media that no doubt increase the sense of bewilderment at what course of action people should take in such circumstances. Generally property disputes arise from a complex mixture of practical problems combined with encroachments upon legal rights or restrictions. This means an experienced property solicitor is often a helpful resource to turn to when things go wrong. Planning in particular is often a minefield as a recent case in Birmingham demonstrates.

£1.9m Professional Negligence Claim Fails on Causation and Commercial Reality

The recent case of Rentokill Initial 1927 plc v Goodman Derrick llp [2014] demonstrates how courts will not impose liability for professional negligence where, amongst other things, causation has not been fully satisfied.

This claim against a firm of solicitors arose out of a property transaction in which the claimants, Rentokill, sought to sell a commercial building to developers Taylor Wimpey in 2009 at the height of the commercial property slump.

A clause in the sale contract relating to planning conditions enabled Taylor Wimpey to pay a significantly reduced price in arbitration after initially refusing to complete on the sale contract.

Employment Appeal Tribunal Ruling in Bear Scotland v Fulton: Holiday Pay Includes Overtime

The Employment Appeal Tribunal (EAT) has published its long-awaited judgment in the closely-observed case of Bear Scotland v Fulton (and the conjoined cases of Hertel v Woods and Amec v Law).

The conclusion of the EAT is that the calculation of Workers’ holiday pay must take account of normal Non-Guaranteed Overtime*. This is likely to be appealed by the employers in these cases as the EAT has granted leave for appeal to the Court of Appeal and there is much at stake financially.

(*Non-Guaranteed Overtime is where the Worker/Employee has an obligation to work overtime, but the Employer has no obligation to provide overtime.)

In the meantime the decision makes possible multiple successful claims for unpaid holiday pay. The government currently estimates that this may affect up to 5 million people and cost employers billions of pounds in backdated pay.

Sophisticated Businesses Share Burden of Arranging Adequate Business Interruption Insurance with Brokers

The recent case of Eurokey Recycling Ltd v Giles Insurance Brokers Ltd [2014] considered the weight of a broker’s duties when arranging business interruption insurance for sophisticated clients.

Brokers are under a duty to understand their client’s business and provide an explanation of how business interruption insurance is calculated but the scope of this duty may vary according to a number of factors including the sophistication of the client and the history of dealing between them.

In broad terms, this case has made it clear that sophisticated clients have a significant role to play in assessing the level of business interruption insurance cover they require.

The Internet of Things will Affect Businesses as Producers and Users

The invasion of the smartphone into our lives has created a revolution in the way we communicate and organise ourselves. Another revolution is on the way though which individuals and organisations already need to start preparing for, that is the internet of things.

The Internet of Things (IoT) refers to a future decentralised network of interconnected objects which can sense and interpret one another, communicating information either unilaterally or in connection with other objects.

The prospect of a future in which society increasingly features a physical world being controlled by a digital one features in much dystopian literature but the associated negativities do not end there.

The onset of IoT is likely to raise a whole new dimension of security and privacy concerns while user expectations are rising rapidly at the same time. Legal complexities are unavoidable.

Lease Assignment Thwarted Due to Guarantee Provisions

The court of appeal heard an important case in 2014 regarding the validity of an assignment where a commercial lease guarantee existed.

In Tindall Cobham 1 Limited & Others v Adda Hotels & Others [2014] the tenants were all associated companies in the Hilton Group Adda Hotels; while Packrup Hall Hotel Limited were the original tenants of ten hotels in the UK under separate leases granted back in 2002. Each of the leases was substantially the same and they reserved significant base and turnover rent with Hilton Worldwide Inc (parent company in the Hilton Group) as guarantor.

Prior to the K/S Victoria Street v House of Fraser (Stores Management) Ltd and others [2011], it was fairly common for guarantors of an outgoing tenant to also guarantee the obligations of the incoming assignee. The KS Victoria case held that this arrangement breached the Landlord and Tenant (Covenants) Act 1995 by attempting to release the liabilities of tenants and guarantors upon assignment.

Changes on the Way for Construction Site Safety Regulations

Throughout April and May 2014, the Health and Safety Executive (HSE) ran a consultation process on proposals to revise the Construction (Design & Management) Regulations (CDM) 2007. This is the third iteration of these regulations since their introduction in 1995.

Over this time, the fatal injuries rates in construction have dropped from 105 in 2000/01 to 71 in 2002/03. In just two years the rate went to the lowest on record which demonstrates the effectiveness of the regulations.

Cloud Storage Legal Issues: Data Protection, Data Storage and Access to Information

In basic terms cloud storage is a way to save information to the web. In legal terms that simple proposition carries a complex web of rights, responsibilities and obligations, particularly for business users.

By using the cloud you are able to access your files from any computer in the world providing that you have an internet connection. If you use services such as Google Docs, Yahoo Mail, Facebook or iCloud then you are already using the cloud.

Cloud storage services are online services that supposedly store your information safely and securely. In many cases they offer a quicker and easier way to back up files than conventional methods.

However, there is a perception that significant risks arise from cloud storage in relation to data protection, safe data storage and access which has led to considerable legal complexity in this area.

Businesses Must Comply with Insurance Conditions or Risk the Consequences

In the recent case of Milton Furniture Ltd v Brit Insurance Ltd [2014] the claimant was not entitled to an indemnity due to a breach of condition precedent in its commercial combined insurance policy.

The company lost out heavily following a fire on its premises because the intruder alarm was not monitored at the time of fire, leading to a failure in its claim against its insurers.

This case serves as a useful reminder to businesses about complying with conditions in insurance policies.

Challenging trustees or executors of a will

Following the death of a loved one, you may have concerns about the legitimacy of their will or what they have written in their will. If you find yourself in this situation, our Guide to Contesting or Challenging a Will provides an overview to the ways in which a will can be challenged or contested.

Insurance Warranty Given Plain Meaning by Court of Appeal

A useful insight into the interpretation of insurance warranties was given by the Court of Appeal in 2014.

A three member Court of Appeal, consisting of Lord Dyson MR, Davis LJ and Gloster LJ, recently handed down its judgment in the case of Amlin Corporate Member Ltd &Ors v Oriental Assurance Company [2014].

Upholding Field J’s decision at first instance, the Court of Appeal held that terms in the ‘Typhoon Warranty’ had indeed been breached and therefore that the reinsurers were entitled to the declaration sought, i.e. the claimant reinsurers were not liable under the policy.

A Truly Pink Trademark Battle Won in the High Court

In July the High Court handed judgment to luxury British fashion retailer Thomas Pink Ltd, ruling that Victoria Secret’s use of a sub-brand “PINK” had infringed Thomas Pink’s trademarks. These included the distinctive use of the capitalised word PINK.

Victoria’s Secret is the largest American lingerie retailer, with an increasing presence in Europe; Thomas Pink earned its reputation for its quality men’s shirts.

The case emphasised important aspects of trademark law which brand owners should bear in mind when it comes to protection and infringement of trademarks.

Fire safety advice for landlords

Our recent article about the obligations of landlords explained how landlords who rent property have certain responsibilities when it comes to protecting their houses and their tenants. In this blog we will look at two key areas of fire safety that landlords must devote attention to when renting their properties out.

What are the grounds for evicting tenants?

Evicting a tenant can be a tricky, costly and time consuming process and for most landlords it is a last resort when they are left with no other choices. However, landlords must always ensure that they follow legal guidelines when bringing forth an eviction. We take a look at some of the grounds for eviction below.

Reducing Start-up Business Litigation Risks

Start-up businesses are finding themselves embroiled in litigation for basic legal failures at the outset of their endeavour. Many of these costly errors could be avoided with simple legal advice.

The messaging service Snapchat, which markets an application allowing users to send temporary photos and videos, has recently settled a dispute over its creation and ownership.

Frank Reginald Brown challenged Snapchat’s chief executive, Evan Spiegel, that he had originally provided the idea of images which would “disappear” when the two attended Stanford University together. Snapchat, judging by recent investment, is valued at approximately £6.2bn.

Start-up businesses, in particular tech companies, can face a variety of legal issues surrounding ownership and rights. The imprecise nature by which a start-up comes about, with undefined share holdings or property rights, often results in the prospect of litigation when the business’s value increases later down the line.

Privacy Claims Rising in Step with Data Growth

The number of privacy cases being brought before the courts in the UK has increased rapidly following the huge growth in the amount of personal information held by organisations.

What Lord Neuberger deemed the “astonishing development” in information technology (IT) has given rise to the situation where personal information is easily collected and shared by large organisations, such as giant tech firms and government departments.

This has important implications for individuals, businesses, the courts and the legal profession.

Litigants in Person are Unlikely to Get a Fair Hearing in Family Courts

The number of litigants in person, people who represent themselves in family court proceedings, has soared in recent years.

This is primarily due to a cut in legal aid which has meant that people wanting access to family solicitors have had to fund their legal advice themselves, except in very limited circumstances, such as care proceedings.

The House of Commons Justice Committee has been told that litigants in person present a number of difficult issues for the legal profession. One of the major issues is they are unlikely to get a fair hearing in the family courts.

Despite the upfront costs, professional legal advice is therefore essential and, in the long term, it is usually the best option financially.

Do I need landlords insurance?

Accidents happen and it can be a costly mistake to overlook specialist landlords insurance. As standard homeowner property insurance is voided as soon as a tenant resides there, it is important that landlords have a good understanding of what insurance is available to them and how it covers them.

What is Proprietary Estoppel?

Proprietary Estoppel is a legal challenge, used for challenging a will. It allows people to challenge a will if they were given assurances by the testator (the person who made the will) during their lifetime that they would inherit property or land from them following their death, but then did not.

What is The Inheritance Act 1975?

The Inheritance Act 1975, or the Inheritance (Provision for Family and Dependants) Act 1975 to give it its full name, is an Act if Parliament relating to inheritance in England and Wales. It allows anyone to challenge a will if they were previously partly or wholly financially dependent on the person who has died, and that person has not left any or enough provision (or “reasonable financial provision”) in their will to continue to provide for them.

What is a tenancy deposit scheme?

Since 6^th April 2007 it has been a legal requirement in England and Wales that landlords protect their tenants’ deposits. Disputes over withheld deposits are all too common, with latest figures showing that only 69% of deposits were returned in full during disputes which the scheme aims to alleviate. However, many landlords and tenants are still unaware of how exactly the scheme works and how it protects them. This article takes a look at some of the basics.

Do you need Employers’ Liability Insurance cover?

All employers are responsible for the health and safety of their employees whilst they are at work. So, in the event of any injury, illness or disease that is sustained during employment, an employer could be liable. However, when they take out Employers’ Liability Insurance, any resulting claim is made against the insurance policy rather than against the employer themselves.

Avoidable Accidents and Misleading Health and Safety Notices

Recent cases from the Health and Safety Executive (HSE) have focused particular attention on businesses that employ workers exposed to the dangers of working at height. They also draw attention to the fact that accidents can happen anywhere for relatively innocuous reasons if adequate care is not taken.

Meanwhile, although health and safety is a popular whipping post for people complaining about restrictions on their liberty, businesses can’t simply blame HSE for every limitation that gets imposed in a working environment.

Does Your Business Need a 'Vaping' Policy for Staff?

There has been a huge rise in the use of e-cigarettes, predominantly among current and former tobacco smokers.

This has left health officials and policymakers in a quandary as to how e-cigarettes should be regulated as a reduction in tobacco consumption is a good thing but the risks of smoking e-cigarettes or ‘vaping’ as it is known are not yet fully understood. That also goes for the risks to other people from the effects of second-hand e-cigarette smoke.

Business have therefore had little guidance on how to respond to the use of e-cigarettes but it is becoming apparent that there is a pressing need for vaping policies in the workplace due to a significant rise in their use.

Can Financial Analysts Libel Companies?

This is an interesting question as some financial analysts have considerable power over the fortunes of company stock prices in the financial markets. A lawyer’s standard answer is that it will always depend upon the circumstances but a recent case in the UK shows that it is possible.

Legal services firm Quindell, an AIM-listed alternate business structure (ABS), recently claimed victory against analyst Gotham City Research, following a recent High Court judgment.

The US analyst was found to have libelled the ABS, following the publication of a report questioning the profit quality of the firm and the accuracy of its accounts; the report resulted in close to £1bn being wiped from Quindell’s market value.

ICO Hands Out Heavy fines for Data Protection Breaches

The Ministry of Justice’s fine of £180,000 is just one recent example of the Information Commissioner’s Office’s (ICO) statutory power to issue fines for serious breaches of the Data Protection Act and the Privacy and Electronic Communications Regulations.

The fine is particularly notable as it represents one of the highest imposed upon a government department. The fine comes in response to the ministry’s “failing” in allowing data to be handled insecurely by 75 prisons stretching across England and Wales.

Needless to say, businesses and other organisations must take their data protection obligations seriously or they risk exposing themselves to potentially hefty fines too.

The Worrying Rise of Industrial Deafness Claims and their Implications for Insurance Fraud

A new trend has recently emerged in the area of insurance fraud.

The Association of British Insurers has warned that industrial deafness is fast becoming the new ‘cash cow’ for ambulance chasers throughout the UK.

Although in the past, whiplash claims have offered the greatest scope for abuse of insurance policies, it now seems that the claims industry is exploring a more creative and potentially more lucrative alternative.

The Number of Same Sex Marriages is Growing Steadily

The end of 2014 will mark the passing of an important year in the fight for equality for gay and lesbian couples in the UK.

The first same-sex marriages in England and Wales took place in March of this year after the Marriage (Same Sex Couples) Act 2013 came into effect. A similar law has been introduced in Scotland with the first marriages being expected to occur before the end of 2014.

This development is a necessary and welcome development and reflects the international trend towards granting marriage rights to same sex couples. It is also hoped that it will inspire more countries to introduce similar laws and put pressure on countries like Russia and Uganda who continue to criminalise people for their sexual orientation.

Tax Dodgers May be Hit by a New Criminal Offence

The issue of tax evasion and tax avoidance have been attracting a huge amount of international attention recently.

Celebrities being caught out using artificial tax avoidance schemes and high-profile parliamentary inquiries into the conduct of large multinationals like Apple and Google have added fuel to the fire. There seems to be a growing public perception that somehow those who seek to avoid tax are harming other aspects of society.

It is perhaps not surprising that, in line with the international move to clamp down on tax-cheats, HMRC has therefore announced a consultation on a new strict liability offence for tax evasion announced in April. The law is aimed at individuals that fail to declare assets held offshore rather than corporations.

Prior to introducing the new offence, HMRC is inviting submissions from lawyers, tax-specialists and even those who may be affected by it to submit their views on the detailed provisions.

Discrimination in the workplace – what you need to know

What is discrimination in the workplace?

Discrimination occurs when an employee is treated differently or less favourably than others. An example of this could be a female worker being denied equal pay to male colleagues, or a mature employee being denied the same training as other workers due to age. Discrimination can occur in the form of direct discrimination or indirect discrimination (see below). Organisations and businesses should put in place policies to prevent any such discrimination from happening.

Claimants for Breach of Contract Cannot Expect to Win More than they Bargained For

The recent summary judgement decision in Comau UK Ltd v Lotus [2014] shows that the courts are keen to ensure that a claimant cannot receive the benefit of a greater level of compensation than that which is specifically provided for in a contract.

Rollingsons Solicitors featured in the Mail on Sunday

Rollingsons’ offered their thoughts and advice in a recent article of the senior lifestyle supplement in last Sunday’s, Mail on Sunday. In the column, Rollingsons dealt with the issue of Inheritance Tax and in particular how planning ahead can help to mitigate taxes.

Gilt Yields Collapse

Cost of Fixed Rate Mortgages to Fall Further

Ray Boulger, of leading independent mortgage adviser John Charcol, comments on the impact of today’s collapse in gilt yields.

Court of Appeal Clarifies Cost Implications in Forfeiture Proceedings: Barratt v Robinson

The recent case of Barratt v Robinson [2014] has clarified the position for landlords as regards costs in property tribunals.

The Court of Appeal also confirmed that determination by a property tribunal is a pre-condition of service of a section 146, under the Law of Property Act 1925, of the landlord’s intention to forfeit the lease.

Barratt v Robinson related to a landlord’s dispute with a tenant who was in breach of covenant to pay building insurance fees.

Does your business need Public Liability Insurance cover?

A public liability insurance policy protects businesses against third party claims for injury, loss or damage to property as a result of the activities of their business.

Latest Health and Safety Cases Highlight Safety Risks to Individuals and Businesses

Recent health and safety cases highlighted by the Health and Safety Executive (HSE) once again stress the importance of businesses properly managing health and safety risks in the workplace.

Businesses large and small should not leave health and safety to chance. Appropriate health and safety policies must be designed, implemented and enforced while robust insurance policies should be taken out to cover unexpected accidents.

Any business unsure of its health and safety obligations should seek professional advice.

Maternity rights – what you need to know

What are an employee’s rights during pregnancy?

In the UK it is recognised that maternity leave is very important. Currently, new mothers are entitled to 52 weeks leave in total, with the first two weeks of maternity leave being compulsory. This is regardless of how long they have been employed, how many hours they work and what their pay amounts to. They will also keep their right to any pay rises and will still accrue annual leave during this time.

What are the rules of intestacy?

If you die without making a will, or if you do make a will but it is not valid and you have no other will, then what happens to your money, property, possessions, savings and other assets (i.e. your estate) is instead decided by something called the rules of intestacy.

Employee liability insurance vs. public liability insurance

Insurance is essential for safeguarding your business and liability insurance can be one of the best ways to protect yourself against compensation claims. But what are some of the key differences between employee and public liability insurance?

Restrictive covenants – what you need to know

What is a restrictive covenant?

All businesses have information and knowledge that helps them operate and potentially gives them an edge over competitors. When an employee leaves it can be devastating to lose their expertise but it can be even worse should they decide to take important information with them. Restrictive covenants can protect a business against such a scenario.

Unfair dismissal–what you need to know

Unfair dismissal is a scenario whereby an employee is relieved of employment for reasons that are not deemed to be valid or fair; but what are those reasons and what circumstances can make you eligible for a claim?

What does public liability insurance cover?

There are potential risks in any business but by protecting yourself with public liability insurance you can ensure that you are covered against incidents that could prove costly to your business.

Public liability insurance protects businesses against third party claims and safeguards businesses against costly compensation pay outs. But what are the areas that the insurance covers?

Complaining via Twitter for a Rapid Response

Social media is increasingly being utilised by consumers to make complaints against companies.

Savvy social media users are harnessing the fact that many companies are keen to avoid negative publicity in the Twittersphere, resulting in the proposition that social media quite often provides the most efficient method of resolving certain types of complaints or issues with a company.

In this way, customers are able to take advantage of a much more expedient way of resolving their consumer issues. Meanwhile, businesses are having to learn how to respond to complaints through these new mediums.

Separating Parents Should Avoid Taking the Law into their Own Hands

A large fall in the number of new private family law cases has prompted Resolution, formerly the Solicitors Family Law Association (SFLA), to make clear its concerns that parents are increasingly taking the legal issues involved in a separation into their own hands.

The Children and Family Court Advisory and Support Service (CAFCASS) statistics reveal that there was a 36% fall in the number of private family law cases in July 2014, compared to last year.

Following the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in April 2013 (LASPO), legal aid has been unavailable for the majority of private family law cases. Family lawyers, including the Law Society’s family law committee chair, have voiced concerns that the lack of funding has left parents without affordable access to the courts.

Managing the Avalanche of Post-Holiday Email

Most employees dread the avalanche of holiday e-mails that is waiting in their inbox when they return from annual leave.

People who send e-mails to employees when they are away holiday can normally expect to receive an automated message, commonly known as an “out of office e-mail,” informing them when a e-mail may be read and offering an alternative contact for urgent messages.

Urgent or important emails requiring action are therefore likely to have been dealt with by colleagues during a person’s absence while the bulk of informative mail may be past its ‘sell by date’ or of little importance in the first place.

As the burden of email grows, so too grows the debate about how the usual post-holiday e-mail misery could be managed more effectively. If changes are deemed necessary, businesses should be mindful of their legal and other responsibilities when they adopt new policies.

Cuts to Whiplash Assessment Report Fees May Reduce Claims

Whiplash claims by drivers involved in car crashes have had a negative impact on the insurance industry. The insurance industry believes the problem is so bad it is costing drivers an extra £90 on their insurance premiums.

From October 2014, the Government is changing the rules regarding medical assessment fees, which are paid to obtain an assessment regarding the extent of whiplash injuries. The fees can run as high as £700, which offers an incentive for medical professionals to exaggerate injuries.

Under the new proposals, the fee will be fixed at £180 to encourage doctors to make a more honest assessment of a driver’s injuries. The Government argues that the move will save drivers money.

Chris Grayling, the Justice Secretary, told the BBC “Honest drivers have been bearing the cost of a system that is open to abuse and it is time for a change.”

Confidentiality Duties Affecting Directors and Shareholders in Business Sales

Investors and directors may have to manage potentially competing obligations when they are involved in negotiations to sell shares in a private business.

In Richmond Pharmacology Ltd v Chester Overseas Ltd and others [2014], the court explored whether an investor, the defendant, had breached the confidentiality clause in a shareholders’ agreement by making disclosures to prospective purchasers relating to its share holdings in the claimant company.

Breaches of statutory duties under Companies Act 2006 were also considered in relation to disclosures made by the defendants’ representatives as directors on the board of the claimant.

Protecting Confidential Business Information

Protecting confidential information is becoming an increasingly important concern for businesses worldwide.

The proliferation of digital mediums, the internet and smart phones means that records of sensitive data are easy to copy. Combined with the speed in which information can spread through channels such as social media, this greatly increases the potential damage which a confidentiality breach may cause.

The problem of employees distributing confidential information is easier to regulate when they are still working in the business as all employees are subject to a duty of good faith and fidelity to their employers.

However, once an employee ceases to work in a company a serious problem can potentially arise. Apart from highly secretive trade secrets, the duty of good faith does not cover confidential information once an employee leaves his job.

Therefore, in the absence of any agreement to the contrary, ex-employees are free to use the contacts and information they have learned in their next form of employment to their advantage.

Trademark Survival: Bear Grylls v Bear Knifes

A dispute over naming rights recently arose between a company representing the popular TV adventurer Bear Grylls and Bear Blades, a small knife manufacturer in Devon.

It appears that lawyers for Bear Grylls Ventures were concerned about the potential for Bear Blades to piggy-back off the goodwill currently generated by Mr Grylls in the adventure goods market.

In particular, the firm was worried about the application to register the logo, ‘Bear. Blades.Steel.Strength.Utility’.

Lawyers for Bear Grylls Ventures sought to have the newly formed company’s website changed so as to avoid customer confusion.

Employers Must Exercise Caution in Dismissal Procedures

An employment tribunal found that former BBC technology chief, John Linwood was unfairly dismissed by the corporation.

This was despite the fact that his own conduct over the management of the scrapped Digital Media Initiative, a project to move content previously stored on tape online, contributed to the dismissal.

The main concern for the Tribunal was the BBC’s failure to follow correct procedure during the investigation and the way in which it carried out the dismissal.

Other employers should take note.

Monkey Selfie Copyright Row Remains Unresolved

British photographer David Slater has faced repeated refusals from Wikimedia, the US organisation responsible for running Wikipedia, the online encyclopaedia, to take down photographs taken from his camera.

Although it was not Mr Slater’s hands that took the pictures but those of a black macaque monkey, the photographer is asserting that he owns the copyright to the pictures.

The pictures have since been deemed as the ‘monkey selfies’.

A Case of Suspicious Copyright Licence Fees for the Conan Doyle Estate

A US federal court recently ordered the Arthur Conan Doyle estate to pay legal costs ($30,679.93) to a claimant who mounted a successful copyright challenge against the estate.

Leslie S. Klinger, a co-editor of a forthcoming anthology of new stories about Sherlock Holmes and Dr Watson, brought the action after being informed by the estate that his publisher would have to pay a licence fee in order to publish the new stories.

Professional Negligence Over Yacht Advice Results in Only Nominal Damages

Solicitors that gave professionally negligent advice on the purchase of a luxury yacht managed to escape lightly after a court awarded only nominal damages to the claimant.

The recent High Court case revolved around the sale of a 200 foot yacht by luxury property developer, Christian Candy, to US telecoms magnate, Michael Hurtenstein, which suffered major engine failure within an hour of the purchase.

Michael Hirtenstein had bought the £3.6m yacht under the impression, supported by his solicitors’ advice, that its seller had personally guaranteed the condition of the yacht through a warranty in the contract.

After the Yacht suffered the engine failure, and when no such guarantee was found to exist, Hirtenstein commenced a claim for professional negligence against his solicitors.

Interpreting Restrictive Covenants in Employment Contracts

Employers and employees should ensure that the restrictive covenants included in employment contracts are appropriate and carefully drafted. Employers must ensure that they are adequately protected while employees should aim to avoid being unduly restricted if they move to a new job.

It should be noted that the courts are willing to enable employers to protect themselves proportionately but clauses that are drafted to widely are likely to be unenforceable. At the same time the recent case Prophet PLC v Huggett [2014] makes it clear that employers should make sure that the specific restrictions will actually be effective in offering them protection.

What Can be Done to Combat the Streisand Effect for Individuals and Businesses?

The Streisand effect refers to the adverse reaction generated from trying to conceal data from publicity whereby more attention is drawn to the information rather than repressing it.

It was coined by Mike Masnick following the suit filed by Barbara Streisand to have photographs of her house removed from the internet. Prior to the suit, the photographs had only been downloaded six times but once the suit was filed, visits to the site increased to 420,000.

Businesses Battling Dissatisfied Bloggers

Internet phenomena such as social media and review sites have given ordinary individuals extraordinary power by providing them with platforms to make their voice heard by the world at large. This is a great thing in many ways as people on the ground can pick up important news in a few seconds and mistreated customers can call out abusive businesses in real time.

However, that power comes with a degree of responsibility as a heat of the moment post on a website can have lasting effects.

The possibility of lone bloggers disrupting sales, or even bringing down a business, should by now be recognised by all businesses. With customers increasingly using online reviews to assure themselves of the reputation of a given business, the presence of a scathing review or blog post about the business can easily translate into lost sales.

Are the Current Laws Adequate for Social Media?

Since the explosion of social media services such as Twitter and Facebook there has been a gradual proliferation of headline-grabbing legal slip-ups by users and also deliberate criminality.

The House of Lords Select Committee on Communications has released a report dealing with criminal offences committed through the use of social media.

Although the impetus behind the report was the widely held belief that the current law on permitted behaviour in social media was inadequate in the 21^st century, the Committee (tentatively) concluded that the current law is “generally appropriate”.

This comes at a time when 34m people in the UK use Facebook and 15m use Twitter.

Is Your Business Ready for Tougher EU Data Protection Laws?

The EU Commission has recently overhauled data protection legislation which means significant changes will be implemented over the next 12 to 24 months.

Individuals have a right to protection of their personal data, and the new legislation standardises data protection across the EU. It offers a high level of protection for personal data to individuals who will be permitted to make claims against companies that mishandle personal data.

Fines for noncompliance are steep and can run up to the larger of €100 million or 5% of annual income. Businesses and marketing firms which collect personal data will need to change their practices in a relatively short period of time to comply. All terms and conditions, and opt-in procedures are likely to need reviewing and updating.

The Effect of Jurisdiction on Expert Evidence and Damages in Insurance Claims

Insurers should take note of the rules relating to expert evidence and damages where an accident happens abroad.

Private international law deals with a number of important considerations in international civil cases, ranging from the determination of the applicable law to the selection of the jurisdiction where the case should be heard.

The recent case of Wall v Mutuelle Insurance de Poitiers Assurances [2014] has helped to clarify some of the issues arising out of the Rome II directive and establish a number of important principles in relation to insurance claims which have a cross border element.

In particular, the Court laid down specific guidelines on evidentiary rules and the assessment of damages.

Heroism Bill Incites Strong Reaction from Politicians and Lawyers

The Social Action, Responsibility and Heroism Bill, is a government bill focused on protecting employers acting responsibly and emergency response services from litigation.

The ‘Heroism Bill’ as it has been dubbed has been met with strong reactions from the legislative and legal community.

The Dramatic Effects of ‘Fundamental Dishonesty’ on Personal Injury Claims

Insurers are likely to have a stronger means to tackle dishonest personal injury claims in future.

The Criminal Justice and Courts Bill includes Clause 45, which addresses personal injury claims where the court has found fraudulent or inflated claims for compensation.

If the claims are based on ‘fundamental dishonesty’, Clause 45 allows the court to dismiss the case entirely, including any genuine underlying claims. An exception may be made for the genuine claims if the claimant would suffer ‘substantial injustice’ in the face of a complete dismissal.

Furthermore, in the event of a finding of fundamental dishonesty, a court may order the defendant’s costs to be paid by the claimant. As well as aiding insurers in the fight against dishonest claims, this should also go some way towards disincentivising the claimants that make them.

Abdul Hakim Belhaj Rendition Damages Case Heard in Court of Appeal

In 2012, Abdul Hakim Belhaj and his wife brought an action against the British government and its intelligence agencies, alleging that ministers had participated in Belhaj’s unlawful abduction and rendition.

In 2004, Belhaj was kidnapped in China and transported to Libya where he was subsequently tortured – with his wife forced to watch – further to his status as a leader in the uprisings against the Gaddafi-regime during 1994-1998.

Following a preliminary hearing in 2013, the High Court last December ruled that, although Belhaj had a good claim, pursuing it in English courts would jeopardise national security. It held that because the claims were necessarily related to the actions of US, Chinese, Malaysian, Thai and Libyan officials, the allegations were non-justiciable in the UK.

Belhaj has appealed that decision.

Leading Mortgage Company publishes latest monthly update

John Charcol, the leading independent mortgage experts, have published their regular monthly newsletter industry update, “Much Ado About Mortgages”, offering a roundup of the latest mortgage related news and topical stories from their experts. The key stories include:

All change on rate rises
by Simon Collins, Technical Mortgage Expert, who gives his monthly update on the state of the mortgage market, and the about turn on the expected rate rises.

Could an Interest Only Mortgage be right for you?
by Alistair Hargreaves, who says that contrary to popular belief, interest only mortgages are still available – for very specific circumstances. Could interest only be right for you?

Perplexing Polls miss the point
Ray Boulger’s latest blog says we should take polls in press releases with a pinch of salt

Getting your house in order – why credit report is important
Elena Todorova explains why your credit score is important and how to make sure it’s correct

Equity Release – your path to a comfortable retirement
Towergate Financial ask could equity release mean you’re sitting on a comfortable retirement?

For more information, visit http://www.charcol.co.uk/

Copyright Issues with a Foul-Mouthed Teddy Bear

The proliferation of YouTube stars and home movie producers has created some interesting issues for intellectual property lawyers.

According to a lawsuit filed in the US District Court in Los Angeles, Seth MacFarlane, Universal Pictures and Media Rights Capital are being sued for alleged copyright infringement in relation to their hit comedy ‘Ted’ which starred a vulgar, talking teddy bear. The movie successfully grossed $550m worldwide.

The plaintiff, Bengal Mangle Productions, created a screenplay and a corresponding web series featuring a vulgar teddy bear named Charlie. ‘Acting School Academy’, as a web series, received over 1.2m views between July 2009 and June 2012.

Charlie the Abusive Teddy Bear, as the spin-off to the original web series, Acting School Academy, was exhibited on Youtube, IMDB, and Blip.tv, and continues to be exhibited online.

Property Buyers May Benefit from Land Registry Taking Control of Local Land Charges Register

Management of the local land charges register is set to be transferred from local authority to central control as the Land Registry becomes the sole registering authority for Local Land Charges (LLC). This is despite 95% of the 620 respondents to an earlier public consultation disapproving of the proposal.

Instead of the maintenance and delivery of separate land charges lists, maintained by 348 separate local authorities, a ‘one-stop shop’ digital search service will be implemented.

The rationale behind the reform involves making registration a much easier process as well as ending the ‘post-code lottery’. Fees for local authority searches currently range from between £3 and £96 while search completion can take between 1 and 42 days.

Refusal of Gay Cake Order May Lead to Sticky Legal Problems

Businesses must be aware of their responsibilities to avoid discrimination in all its forms whether they are dealing with employees, customers, suppliers or other stakeholders.

A cake manufacturing business in Northern Ireland is the latest business to end up attracting both legal threats and news headlines for allegedly discriminatory practices towards customers.

Update on the FCA Review into Payday Lender Debt Collection Practices

The Financial Conduct Authority’s regulation of consumer credit, beginning on 1 April 2014, included subjecting payday lenders to an in-depth thematic review into their arrears management practices.

The review was one of the first actions the FCA took in order to bolster the statutory objective behind its creation - the protection of consumers.

The FCA made clear that this area of finance is a priority for the newly created regulator, citing how six out of ten complaints to the OFT are about how debts are collected.

Furthermore, the FCA stressed the fact that over a third of all payday loans are repaid late or go unpaid.

How Can the ECJ’s ‘Right to be Forgotten’ Rule be Fairly Implemented?

Google has attracted plenty of criticism in its application of the new ‘right to be forgotten’ rules following the recent European Court of Justice (ECJ) ruling.

The rules make clear that EU citizens who are not ‘in the public life’ have the right to request that internet links, resulting from name-based searches which are ‘inadequate or irrelevant’, or no longer relevant, be removed from search results.

This does not change the status of the webpage itself, which remains online, but merely blocks access from European search engines such as google.co.uk.

Google deals with 90% of Europe’s online searches and the company now receives 1,000 requests to take down search links per day. But what makes a particular takedown decision by Google fair or unfair?

Widow of Chain Smoker Awarded $23.6bn: Is There an Equivalent British Case?

Cynthia Robinson, the widow of a chain smoker, has been awarded $23.6bn (£14bn) in punitive damages following judgment in Florida.

RJ Reynolds Tobacco, the company which manufactured the cigarettes her husband had smoked, has been ordered to pay the sum as compensation following Cynthia Robinson’s filing of a lawsuit against the company in 2008 alleging wrongful-death.

Supreme Court Eases Pain of Holiday Injuries for UK Insurers

As the summer of 2014 draws to a close there are those who will be suffering from more than just feeling seasonally SAD. In addition to the direct pain injuries sustained on holiday can bring, there are also a number of legal complexities that can follow.

The conflict of laws governing torts including personal injuries occurring whilst on holiday was in question in the case of Katerina Cox v Ergo Versicherung AG [2014] at the beginning of the year.

The question as to which law is applicable, that of the state hosting the accident or that of the state to which the claimant is resident remains an important one. It is generally accepted that English law provides for more generous payouts of damages than, for example, French law.

Will a New Parliamentary Bill Bring the Abolition of Chancel Repair Liability?

Chancel repair liability is a long standing legal provision which makes homeowners liable for the repair of churches where a parish has registered an overriding interest in their land. The potential costs attached to repairing churches can give homeowners unholy nightmares but unfortunately the title deeds of a house do not necessarily show that liability for chancel repairs exists.

Parochial Church Councils had until October 2013 to register chancel repair liability with the Land Registry. Properties sold after this date where no interest has been registered cannot be held liable but properties where an interest has been registered or which have not been sold since October 2013 may continue to be held liable.

The National Secular Society has alleged that 12,000 properties have already had a registration notice served on them, and many more may yet receive one. As a result, public interest and awareness in the issue has increased.

The only way to remove the liability is to convince the parish to do so, or to prove the liability was enforced incorrectly. Abolition of chancel repair liability would therefore be a great relief to owners of encumbered properties given the vast expense often associate with it.

Certain Litigation Time Extensions Are Now Available Without an Application to Court

The Civil Procedure Rules (CPR) have been subjected to a variety of changes recently in order to foster a more co-operative approach to resolving disagreements between litigating parties.

CPR 3.8 has been amended effective from 5 June 2014 such that parties are able to agree extensions of a deadline of up to 28 days without application to court, provided such an agreement does not affect hearing dates.

The rule change is the latest example of the court system being tweaked to encourage co-operation between parties so as to facilitate more proportionate costs.

Refusing to Mediate May Bring Cost Penalties

Disputing parties should seriously consider mediation and other forms or dispute resolution where it is proposed as an alternative to court proceedings. Failure to do so may bring cost penalties.

Despite the fact that it appears to undermine the adversarial approach traditionally favoured in common law countries, mediation has become an increasingly popular mechanism of Alternative Dispute Resolution (ADR) in England and Wales.

It offers a less confrontational alternative to a court action and has proven to be very successful. It is estimated that 70% of cases taken before a mediator settle at the mediation stage or soon after.

Court of Appeal Decision to Impact Limitation Periods in Industrial Disease Claims

The issue of limitation periods – the period of time within which a party to a legal action must bring a claim – has been recently addressed in the case of Collins v Secretary of State for Business Innovation and Skills [2014].

Mr Collins, the claimant, worked as a dock-worker between 1947 and 1967 during which time he was exposed to asbestos. He was diagnosed with lung cancer in 2002 but only got in touch with solicitors in 2009.

At first instance the claim was held to be time barred under the Limitation Act 1980. The Court of Appeal was asked to consider whether the lower court had correctly concluded the issue of the timing of the Claimant’s constructive knowledge and whether the court had erred in exercising its discretion by not extending the limitation period.

Credit Controls Not to Copy: Banks Chasing Debtors Through Defunct Solicitors Firms

It seems almost impossible for banks to avoid any opportunity to attract public opprobrium at the moment.

In the latest controversy, British banks, including RBS, Natwest, Lloyds and HSBC, have been caught out issuing legal demands to customers from what at first glance appear to be independent solicitors firms. However, on further investigation, these firms have been revealed to be mere names for the banks’ respective in-house lawyers and legal departments.

The revelation follows on from Wonga recently being ordered to pay over £2.6m in compensation to its customers as a result of its sending certain letters to its customers in the name of fictional legal entities.

All businesses should have effective credit control policies in place but those policies must be appropriate and legal.

Facebook Encounters Data Protection and Privacy Issues in UK Probe

Businesses that interact with customers in real time by using data collected via online channels should pay attention to the issues tech giants such as Facebook are currently encountering.

The UK data regulator has begun investigating whether Facebook had broken data protection and privacy laws when it conducted a psychological emotion study on unwitting users.

The experiment consisted in manipulating the content of users’ news feeds, the result being that users which had viewed more negative posts in their news feeds tended to post more negative statuses, and vice versa.

Facebook’s size and public profile draw considerable attention to its every move regarding the treatment of people’s information. That does not mean it is the only organisation that will attract the attention of regulators over data protection and privacy issues though.

All businesses acting as data controllers should keep abreast of their obligations and any new legal developments that occur.

UK –US Extradition Case Highlights Parental Kidnapping Risks

The extradition of 57 year old mother Eileen Clark to the US should serve as a warning for parents considering removing their children from a jurisdiction without parental consent.

Parental kidnapping is recognised both in the UK and many other countries but parents are often unaware of the potential consequences.

Anyone unsure about their right to take children abroad or anyone concerned about the risk of a parental kidnapping should seek immediate legal advice.

Burnt Luxury House Adds Heat to Contract Formalities

On April 2012, fire destroyed a large house which was in its course of construction on Green Island in Poole Harbour.

Consequently, the claimants filed an action against the defendant builders, Feltham Construction Limited, claiming damages in excess of £3,500,000.

The court found in favour of the claimant and against the defendant despite the fact that the defendant had not actually carried out the work that led to the fire.

One of the key issues in the case was the fact that contractual formalities had not been completed by the time construction had begun.

Claims Against Agents in Insolvency

Businesses looking to work with an agency under an agency and distribution agreement should take note of a case considered by the Court of Appeal early in 2014.

The case of Bailey v Angove’s Pty Limited [2014] raises an interesting issue for businesses regarding their right to terminate an agency agreement. Generally a principal can revoke an agent’s authority to act on their behalf but in this case an attempt to terminate the contract and the agent’s authority due to an insolvency event was deemed ineffective.

The case has since been appealed to the Supreme Court but it is a useful reminder of the need for careful drafting in agency and distribution contracts and the potential risks if something goes wrong.

Are Britain’s Roads Really Too Dangerous for Cycling?

Enthusiasts have dared to hope that the Tour de France passing through the UK would encourage more people to incorporate biking into their daily commute for their personal and environmental health.

However, a recent survey indicates that over half British adults believe their local roads are too dangerous to commute by bike.

Younger British cyclists feel less endangered than older ones, with 45% of 18 to 24 year olds feeling endangered and 61% of those aged 65 and over.

The Cambridge Cycling Campaign cites conditions such as "badly maintained roads" and "narrow cycle lanes" as examples of hazards that endanger cyclists.

But is it all bad news for Britain’s cyclists?

Challenging Personal Guarantees on Borrowings

Creditors commonly ask a principal borrower to provide a third-party personal guarantee as a condition of the offer a loan. Should that principal borrower default and not fulfil all its contractual obligations, the creditor may seek repayment from the third-party guarantor directly under the terms of that guarantee.

While personal guarantees are often clear and enforceable, a guarantor with any doubt should seek legal advice on the validity of the personal guarantee. There are a number of uncertainties that can arise relating to guarantor repayment as guarantors may only be contractually liable for some or even none of the amount due if the contract or a term in the contract is limited or unenforceable.

Lenders on the other hand must be sure that personal guarantees are carefully drafted to avoid enforcement issues.

Rogue CMC Regulation Continues with New Fines Unveiled

Anyone that has felt harassed by nuisance calls from marketers and robotic calling systems will be pleased to know that the net has been closing in on the claims management companies (CMCs) that engage in these practices. Consequently the number of CMCs registered to handle personal injury claims fell by nearly 50% in 2014.

On top of that, new plans announced by Justice Minister Lord Faulks QC make it clear that a CMC using information gained via illegal unsolicited communications (for example, cold calling or spam texts) could be fined up to 20% of its turnover.

For larger CMCs, this could mean fines totalling millions of pounds.

Google Take-down Notifications: The Right to be Forgotten in Action

Google’s recent take-down notice to the BBC that it would exclude certain search results for a 7-year old BBC blog post appears to have caused some confusion over the operation of the EU’s ‘right to be forgotten’ rules.

Despite the avalanche of commentary, online publishers are likely to find that uncertainty over the new right to be forgotten rules will continue for some time while the practicalities of the recent European Court of Justice (ECJ) legal ruling take shape.

Wonga-style ‘Solicitors’ Letters’ Attract Potential Criminal Liability

Recent debt recovery practices of sending communications under non-existent solicitors firms’ names could attract criminal liability.

Payday loan company Wonga has agreed to pay over £2.6m in compensation in response to the Office of Fair Trading’s finding that the company had created fictional law firms in order to threaten legal action against its customers in arrears. In addition, the Law Society had asked the Metropolitan Police to investigate whether Wonga has also committed a variety of criminal offences.

Companies thinking of using ‘innovative’ techniques to chase outstanding debts should take note.

Managing Responsibility for Another’s Affairs

There are various parts of a person’s life that friends or family members may be appointed to manage on their behalf in certain circumstances. This can be intimidating for inexperienced appointees.
Third party appointments can be made for dealing with a host of responsibilities such as managing bank accounts, buying or selling assets or executing wills. People taking on these duties via lasting powers of attorney, deputyship orders and other third party management arrangements may come across issues that they are not comfortable dealing with on their own.
In circumstances where those appointed feel overwhelmed it can be helpful to seek professional advice and also to reduce any risk of a claim being made against them.

How to Manage Property Disputes over Trees

Property disputes can arise from any number of causes most of which usually relate to things done by neighbouring occupiers. One area of dispute that is more of a ‘natural’ source of arguments between owners of neighbouring property is the management (or lack thereof) of gardens and the things that grow in them. Trees in particular can be a source of trouble, especially when they are near to or form part of the boundaries of properties.

As with other areas of property law, dealing with disputes over trees can be complex and expensive if things get out of hand. An amicable solution is generally preferable to heading to court but understanding the legal position early on can help avoid things from escalating that far. A good solicitor can also help recommend services such as alternative dispute resolution if the parties cannot overcome their differences informally between themselves.

Incident of Boy Mauled by Polar Bear Highlights Liability Risks

In the early morning of 5 August 2011, 17-year-old schoolboy Horatio Chapple was mauled to death by a polar bear and four others were injured. Chapple was on an adventure holiday to arctic Svalbard, Norway, organised by the British Schools Exploring Society (BSES).

Following the tragic incident, an inquest was commenced to determine whether the expedition leaders or sponsor held any liability for the boy’s death.

Technology: Mixing Business and Pleasure

Technology’s blurring of the lines between business and pleasure took a significant leap further forward recently after Apple and IBM announced a commercial alliance. The two technology giants plan to work together by using IBM’s expertise in the corporate technology market to make Apple products such as the iPhone and the iPad more business friendly.

The move draws attention to the wider issue of mixing the professional and the personal which has always come with something of a health warning. As this trend gathers pace through the use of mobile technology, businesses and individuals will need to be aware of a host of potential legal issues that are likely to arise.

Outsourcing: Key Contractual Issues for Businesses

Outsourcing is a major strategic tool for businesses. What was once seen as primarily a cost saving exercise is now perceived as a powerful way to improve productivity and competitiveness and as essential for growth in many sectors.

From a strategic perspective, outsourcing can provide clear benefits within a simple framework but, as ever, the devil is in the detail. The contractual approach must be managed carefully in order to set the relationship up correctly and meet the expectations of both parties.

Cost savings and efficiency gains will only be realised if an outsourcing project is carried out successfully and this is not guaranteed.

FCA Launches Project Innovate to Help Regulated Firms with Technological Change

There are a number of existing trends that are going to dramatically affect the way the investment management industry operates in the future.

The financial crisis may have been tumultuous and fostered an onslaught of regulation in the sector but there are other factors at work that are likely to bring even more fundamental change.

Demographics, environmental issues, social values and technology will all play a part as developments in these areas drive evolution in the economy.

Regulation will need to change to keep up with these forces and technology is an area in which the FCA has identified opportunities to be proactive rather than reactive.

Responsibility for Accidents on Your Property

Terrible accidents do occasionally happen to visitors when they are on someone else’s property. The death of a woman hit by a tree branch when visiting Kew Gardens in September 2012 provides a horrifying example of the sorts of freak accidents that can occur.

Such misfortunes serve as a reminder of the risks that property owners and visitors are exposed to by these types of events. In June 2014 the West London Coroners Court concluded that the victim of the tragedy at Kew Gardens, Erena Wilson, 31, from Hanwell, west London died from accidental death but Kew Gardens faced considerable scrutiny over the condition of its trees during the hearing.

Understanding the reasoning of these types of cases can help property owners better understand their responsibilities and hopefully reduce the risks of similar tragedies in future.

Insurance Fraud Figures are Not a Clear Cut Condemnation of Claimants

Insurance fraud figures released by the Association of British Insurers (ABI) in May paint a stark picture of the problem. The report identified nearly £1.3bn worth of insurance fraud claims in 2013 which marked an increase of nearly 18 per cent in one year.

These shocking figures can easily tempt people into lambasting the claims culture that has arisen in the UK, with excessive blame being placed at the feet of much maligned personal injury lawyers. This knee-jerk reaction has the potential to mask the reality of how the insurance industry operates and the more nuanced situation that actually exists.

It is important to note that the vast majority of claimants and insurance cases are brought legitimately and handled properly by insurance companies, personal injury lawyers and others. Those attempting to make a claim should not be put off by such eye-catching headlines; injuries such as whiplash can be genuinely painful and debilitating.

Is a Third Party Service Charge Apportionment Binding on Leaseholders?

The Upper Tribunal (Lands Chamber) recently had to consider this question in relation to a property nestled on the shores of Lake Windermere.

The main question that the Upper Tribunal needed to answer was whether an agreement in a residential lease that the service charge apportionment was to be determined by a third party with that decision being final and binding, was void.

The decision, which rested upon the interpretation of section 27A(6) of the Landlord and Tenant Act 1985, has important implications for residential landlords and property managers.

Employment Tribunal Statistics Shows Falling Claims Trend Continues

The latest employment tribunal statistics released in June showed that the number of claims is falling.

The tribunal statistics quarterly for the period January to March 2014 show a 59 per cent fall in single employment claims compared to the same period in 2013.

The actual number of single employment tribunal claims for the first quarter of 2014 was 5,619 which made up 13 per cent of all claims received by HM Courts & Tribunal Service. The bulk of other claims entering the tribunal system related to social security and child support, and asylum claims.

The employment tribunal statistics are in line with a long-term downward trend in the number of claims being made but specific short term factors are also at work.

Tax Avoidance Schemes: Are You Ready for Upfront Tax Bills Before Litigation?

In Chancellor George Osborne’s 2014 Budget speech a new disincentive was announced for tax avoidance schemes.

That disincentive took the form of an ‘accelerated payments’ provision giving HMRC new powers to collect disputed taxes up front before any legal ruling has been made on the lawfulness of a scheme.

The provision is expected to become law within the next couple of months meaning many people will suddenly have to find large sums of cash in short order.

Court of Appeal Adds Heat to Summer Airline Delays

Holidaymakers flying abroad for their summer break this year have received a double bonus for their peace of mind courtesy of the Court of Appeal.

Two recent consumer cases brought against airlines for delayed flights have bolstered the rights of individuals that face the misery of delays to and from their destinations.

The first case, Huzar v Jet2.com, limited the ‘extraordinary circumstances’ in which airlines could avoid compensating passengers for delays. The second case, Dawson v Thomson Airways, extended the period for bringing compensation claims from the accepted time of 2 years to the contractual limitation period of individual countries, 6 years in the UK.

This is of course good news for consumers but may mean costly compensation bills for airlines.

How Do Service Charge Provisions Operate When a Break Clause is Exercised?

If a tenant decides to end a lease early under a break clause, what happens to funds built up through the service charge for anticipated works that have not yet been carried out?

This is an interesting question for both landlords and tenants that was recently considered in Friends Life Management Services Ltd v A & A Express Building Ltd [2014].

In deciding the case the High Court set out the way in which the service charge should be calculated for the final accounting period in a commercial lease.

Driving Disruption: Uber in the High Court

Uber’s smartphone-based pick-up service is just the latest in a line of new businesses that are using technology to disrupt existing markets.

London’s black cab drivers are not going to back down without a fight over their territory though. After Transport for London (TfL) authorised the American business to operate in the capital, a fierce row broke out between TfL, the Licensed Taxi Drivers Association (LTDA) and the Licensed Private Car Hire Association (LPHCA).

TfL issued proceedings in the High Court in June to get a judicial determination on the legality of Uber operating its service. This has now been delayed due to a spate of cases related to the service which are making their way through the magistrates’ courts.

Don’t Let Business Jargon Get in the Way of Good Communication

Entrepreneurs and business managers hardly need reminding of the importance of communicating well. Whether it is dealing with customers, suppliers, shareholders, employees or regulators, good communication is vital and can mean the difference between success and failure.

Business jargon plays a double edged role in the work environment. On the one hand it enables people to display their understanding and belonging to a particular type of group, on the other it can alienate other stakeholders that are just as important to a business.

Seasoned litigators usually have countless tales of disputes that could have been avoided with better communication. So although jargon has its place, its use must be carefully balanced to avoid problems.

Are You Ready For Flexible Working?

Flexible working is now upon us.

From 30 June 2013 British businesses and their employees have become subject to new flexible working rules and those rules are broad in scope.

After 26 weeks of employment, employees have a right to request flexible working which can entail a wide variety of options.

On the face of it what this means is that qualifying employees can now request flexible working once per year and their employer is under a legal duty to provide an answer to that request.

Rising Insurance Fraud Equals Rising Costs

The cost of insurance fraud hit record levels in 2013 with £1.3bn in false claims being made according to the Association of British Insurers (ABI).

The most common type of fraudulent claims were related to motoring which made up a staggering £811m of the total. The number of fraudulent motoring claims came to nearly 60,000 individual cases, meaning tens of thousands of people either exaggerated or made up their claims entirely.

As well as being a criminal offence, insurance fraud imposes costs on both insurance firms and honest insured parties that suffer from increases in their premiums.

It is important to remember though that not all disputed insurance claims imply fraud, there are a variety of reasons that insurers and the insured might clash over payouts.