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.