Archive for August, 2010
Friday, August 27th, 2010
The debate about the future of litigation costs rages on. The Adam Smith Institute is the latest body to publish a report proposing reform to the CFA regime, and the abolition of legal aid for most claims.
The report’s author, Anthony Barton, proposes a cap on recoverable success fees and ATE premiums accompanied by a modest uplift in general damages to address the concern that claimants will be left less well off. The great strength of his report is in placing legal costs issues in the context of the current economic situation.
Barton is critical of Lord Justice Jackson’s proposals in relation to one way costs shifting and expresses concern in relation to the potential for unintended consequences, including spurious claims and fraud.
Jacksons’ recommendations should not be dismissed lightly and are likely to be at the heart of the Government’s proposed consultation in Autumn. Whether or not his conclusions prove correct, Barton’s report is also deserving of further consideration in the months ahead.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
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Rating: 9.0/10 (3 votes cast)
Tags: ate insurance, costs, insurance, jackson report, legal costs, litigation
Posted in Litigation | No Comments »
Friday, August 27th, 2010
Barnardo’s has reported that fair-banding and independent admission authorities are necessary to avoid social segregation in the school admissions process.
Fair-banding involves pupils taking a standard test, after which they are divided into 5 bands. Schools then admit pupils in equal proportions from each ability band. Barnardo’s also recommend that decisions on admissions should be made by a body independent of the school.
Michael Gove acknowledges that the schools admission system is unsatisfactory. However, a move towards independent admissions authorities may come as a blow to new academies who, as part of their promised autonomy, currently make their own admissions decisions.
Posted by Katie Michelon, who specialises in education law advice to schools, colleges and LEAs, including commercial advice on education sector projects such as academies, trust schools and federations.
Katie Michelon
0115 976 6189
kmichelon@brownejacobson.com
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Tags: barnardos, Charities, Education, school admissions, schools
Posted in Charities, Education | No Comments »
Friday, August 27th, 2010
On Friday it was reported that the US FTC has ruled against a firm whose employees, posing as ordinary consumers, posted favourable reviews of its own clients’ iPhone applications. This type of marketing activity is known as “astroturfing.” The firm must now remove all the reviews.
In the UK, astroturfing is illegal as it is “blacklisted” by the Consumer Protection from Unfair Trading Regulations 2008. If degrading reviews of competitors’ products are also posted, this could breach the Comparative Advertising Directive, and constitute malicious falsehood, for which damages could be claimed.
The precise extent of astroturfing online is unknown – though there are certain ways to detect if a review is genuine or fake. But in a world where the casual consumer relies heavily on reviews and averaged star-ratings (be it on Amazon, TripAdvisor or iTunes), astroturfing can clearly impact on sales if left unchecked.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, astroturfing, Brands, Consumer protection, marketing
Posted in Advertising & Marketing, Brands | No Comments »
Friday, August 27th, 2010
Oracle (formally Sun Microsystems) brought infringement proceedings against M-Tech for importing disk drives (bearing the SUN trade marks) without its consent into the European Economic Area (EEA) that had been first marketed outside the EEA. Under European trade mark law, putting goods on the market in the EEA without the trade mark owner’s consent amounts to trade mark infringement.
Oracle deliberately does not publish information about whether its goods have first been sold in the EEA, making it virtually impossible for re-sellers to know where the goods were first marketed. This acts as a deterrent to the importation of Oracle hardware generally, regardless of place of first marketing.
M-Tech said Oracle’s policy was contrary to European competition law but the High Court granted summary judgment in Oracle’s favour. The decision was overturned by the Court of Appeal who decided that M-Tech had a real prospect of success with its so called “Euro-defences”.
M-Tech still needs to establish those arguments in order to win its case and we could be waiting some time for an answer, given that a reference to the Court of Justice of the European Communities looks likely.
Posted by Emma Tuck, who specialises in Intellectual property disputes relating to patents, trade marks, designs and copyright; non-contentious intellectual property matters including advising on licensing, assignment, confidentiality and collaboration agreements
Emma Tuck
0121 237 3908
etuck@brownejacobson.com
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Tags: competition law, grey goods, Intellectual Property, parallel imports, trade marks
Posted in Intellectual Property | No Comments »
Friday, August 27th, 2010
The new CAP and BCAP Codes come into effect on 1 September 2010.
Changes include:
- an over-arching “social responsibility” rule for broadcast adverts
- clearer guidance for both broadcast and non-broadcast on what the ASA will consider are unfairly exaggerated “green” claims
- rules preventing marketers from collecting data from children under 12 and from exploiting the trust that young persons place in parents, teachers or other persons
- clarification on the acceptable use of the word ‘free’
- a requirement that prize promotions be clear about which prizes are available to win and those that are guaranteed to be won
- new sector-specific rules for charities, food and drink, adult products, debt advisers and lotteries
Advertisers should review their current marketing projects against the updated Codes, so that they do not get caught out by the changes – and so they do not miss out on any new opportunities now available.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, ASA, marketing, new ASA rules
Posted in Advertising & Marketing, Brands | No Comments »
Friday, August 27th, 2010
The BBC has reportedly started legal proceedings against HarperCollins for seeking to publish an autobiography of Ben Collins, a former racing driver, in which Mr Collins alleges that he is The Stig, the helmeted driver of BBC’s Top Gear. The BBC alleges that the threatened disclosure “breaches agreed contractual and confidentiality obligations”.
Presumably, if Mr Collins is the current Stig (or perhaps one a number of Stigs) there will be restrictive covenants in place. If Mr Collins is merely a former Stig then the contractual position may be more complicated. Even so, one must fancy the BBC’s chances of showing that any such disclosure is/was a breach of confidence at common-law (although interim injunctive relief would appear impossible given that the Stig is out of the bag, so to speak).
Either way, The Stig’s secret identity is a key theme of the show. If Mr Collins is the current Stig, the BBC will surely move quickly to replace him.
Posted by Nick McDonald, who specialises in intellectual property law including copyright, patents, trade marks, passing off, design disputes, breach of confidence, database rights and IT.
Nick McDonald
0115 976 6198
nmcdonald@brownejacobson.com
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Tags: BBC, Ben Collins, Intellectual Property, The Stig
Posted in Intellectual Property | 1 Comment »
Wednesday, August 25th, 2010
DSG Retail Limited has been found in breach of the Data Protection Act after discovery of customers’ credit agreements in a skip at one of its PC World Stores.
DSG’s Chief Executive, John Browett, has given a formal undertaking to the Information Commissioner’s Office agreeing to change DSG’s procedures to ensure that this doesn’t happen again.
Whilst the breach of the Data Protection Act has caused bad press, DSG Group can consider itself lucky that the personal information contained in the credit agreements were not used by criminals – if they had been, DSG would have been on the wrong side of a £500,000 fine from the Information Commissioner as well as likely damages claims from the individuals concerned.
The case highlights the need for all organisations to comply with the Data Protection Act and, in particular, the ‘seventh data protection principle’ which requires that organisations have appropriate measures in place to guard against accidental loss of, destruction of or theft of personal information.
Posted by Simon White
0115 976 6532
swhite@brownejacobson.com
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Tags: credit agreements, Data Protection, DSG retail
Posted in Data Protection | No Comments »
Wednesday, August 25th, 2010
GP groups have branded NHS Direct’s plans to decentralise by having at least 100 of its staff working from home by March 2011 as “rearranging the deckchairs on the Titanic” given the IT infrastructure investment required.
Currently, taxpayers are broadly accepting of cuts however, if planned savings do not materialise because costs are being shifted rather than cut, it is unlikely that this tolerance will continue.
It is essential that cuts are strategically planned with a view to achieving the planned efficiencies subject to the outcome of the comprehensive spending review due in the Autumn. A failure to do this could see the ‘deckchairs’ go down with the ship!
Posted by Laura Hughes
0115 976 6582
lhughes@brownejacobson.com
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Tags: IT, NHS direct, Public Sector, Total Place
Posted in Government bodies, NHS, Public Sector | No Comments »
Monday, August 23rd, 2010
Thousands of food businesses will have their hygiene ratings made public from 1 October.
Hygiene ratings will be shown on a numeric scale. A rating of five indicates very good food hygiene standards. There is then a sliding scale to a zero rating which indicates that urgent improvement is necessary.
The FSA today published the newly designed branding that intends to make it easy for consumers to understand and use food hygiene ratings. The design is big and bold.
Although the small print provides that the guide is not a guide to food quality, who would want to dine in an establishment where “URGENT IMPROVEMENT IS NECESSARY”? With hygiene ratings often being the subject of intense debate between the local authority and establishment, and the huge potential for the food business to lose considerable business following receipt of a low rating, is it really fair to force this businesses to display this label?
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Tags: food, food hygiene, Regulatory
Posted in Food & drink | No Comments »
Friday, August 20th, 2010
When establishing the meaning of words that are claimed to be defamatory, one must look at the context in which they appear.
In 2008, The Spectator published an article on its website which said:
“As Harry’s Place points out:-Demos sponsored and participated in a debate at IslamExpo and a seminar on ‘Political Islam’. That’s right: a left of centre think tank worked with a clerical fascist party to organise a conference about its racist, genocidal, theocratic political programme.”
Islam Expo Ltd, the organisers of the event, sued for libel. The Spectator argued that the court should look at the source of the quotation which was linked to the article. From this, it argued, it was clear that ‘party’ must be a reference to the British Muslim Initiative or the Muslim Brotherhood.
However, as the words ‘IslamExpo’ appeared in the short quotation in the Spectator’s article, and the original article also said that the British Muslim Initiative, Muslim Brotherhood and Islam Expo “are one and the same”, Tugendhat J held that the words were capable of referring to the organisers.
The judge emphasised that he did not intend to rule whether looking at hyperlinked documents was right in law – but in cases like this, where one internet posting comments on another, it must be sensible to look at the original posting to ascertain the meaning of the second post.
Posted by Giles Parsons, who specialises in intellectual property agreements and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Giles Parsons
0121 237 4557
gparsons@brownejacobson.com
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Tags: Intellectual Property, IslamExpo, media
Posted in Intellectual Property | No Comments »
Friday, August 13th, 2010
The Government has made further announcements this week as part of its promised review of school behaviour policy.
A key development is the halting of mandatory local behaviour partnerships. Under legislation passed under the previous Government, the requirement that schools join a LBP was to take effect in September. The most talked-about element of these partnerships is the duty on schools to support pupils excluded from another school within their area.
The process of ‘managed moves’ enables pupils at risk of exclusion to have a fresh start at a new school and technically avoid exclusion. The Conservatives have always been convinced that it was unfair to force ‘good’ schools to take on pupils from ‘bad’ ones. But the result could be, as teaching unions have suggested, that without local support some schools will simply be left to ‘sink’ under the weight of their disciplinary problems.
Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com
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Tags: Education, Managed Moves, School Behaviour Policy, schools
Posted in Education | No Comments »
Friday, August 13th, 2010
In the motor industry it is important to differentiate your product, and currently concerns about quality are running high. So Kia’s ’7 year warranty’ advertising campaign is timely – however, the ASA have this week ruled that it should not be repeated as it is misleading.
Kia had failed to sufficiently highlight that the warranty was subject to a 100,000 mile limit, and that not all items would be covered for the full length of the warranty – even though the 100,000 mile limit was referred to in the final frames of the ad, and was considerably in excess of the UK’s average annual mileage (around 10,000 miles).
Although the ruling is not fatal for Kia’s ’7 year warranty’ strapline, Kia will have to alter its adverts. Advertisers of course want to have a clear message, but this ruling shows how difficult this can be if there are significant qualifications to an offer, which need bringing to the consumer’s attention. If an offer is qualified – that information must be as clear as the strapline itself.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, Advertising Campaign, ASA, Kia
Posted in Advertising & Marketing, Brands, Manufacturing | 1 Comment »
Thursday, August 12th, 2010
What does ‘on completion of this agreement’ mean?
That’s the question that the high court had to decide, faced with a broadband business who had erected electronic communications equipment on the rooftops of certain council properties, including the Council’s own City Hall building.
The business was relying on a provision of a binding memorandum of understanding that allowed it access to council rooftops for this purpose for a period of 15 years, such access to be granted…’on completion of this agreement’. Was the licence enforcable?
Not according to Mr Justice Roth in City of Westminster v Urban Wimax who took into account the fact that a pilot scheme was clearly anticipated under the agreement and that the implicit intention was that the licence only be effective if this pilot scheme had proved sucessful. Urban Wimax were seeking to take advantage of the poor drafting of the memorandum of understanding to suggest that the licence took effect from execution of the agreement.
The council were perhaps lucky here not to have been lumbered with a licence that took effect too early and by the common sense approach of the court, but it is a warning where a pilot scheme is planned for a project (which often include the scantest legal wording), to check the wording of any licences granted, so as not to be embarrassed in court.
Posted by Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Tags: Broadband, Commercial contracts, IT Contracts
Posted in Commercial contracts, IT Contracts | No Comments »
Tuesday, August 10th, 2010
The scope of copyright protection for computer programs has come under scrutiny once again. The view of the English Courts has been that copying the functionality of a program which does not involve the copying of source code or graphics does not amount to infringement of the copyright in the program. In SAS Institute v World Programming Limited, the Judge’s preliminary ruling followed the previous court decisions but he acknowledged that guidance on a number of aspects of this area of law was required from the ECJ. It will be interesting to see if the ECJ upholds the approach taken by the English courts: if it does, then claims will have to be based on the copying of other elements of computer programs such as screen displays. Whilst this approach may be difficult for software owners to accept from an ownership perspective, it does provide the freedom to develop competing software so long as the source code and graphics are not copied.
Posted by Sara McNeill
0121 237 3930
smcneill@brownejacobson.com
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Tags: copyright, Intellectual Property, Software
Posted in Intellectual Property | 1 Comment »
Friday, August 6th, 2010
It has been reported that a consumer has been paid more than £2,000 by British Gas, after he threatened them with court action over the time he wasted dealing with their erroneous demands for payment.
As a self-employed photographer, he logged every phone call and letter sent, then claimed for his loss of earnings. British Gas say they haven’t accepted liability, and the payment was made purely as a gesture of goodwill. However, consumers are being encouraged to record the time spent dealing with utility companies, and consider charging them for any loss of earnings.
Although courts do not award damages for mere inconvenience, Ombudsmen may recommend such a payment. Multitudinous consumer claims for wasted time would be difficult to cope with administratively (and economically, if the consumers are determined to go to court).
Does this case just give consumers another encouragement to complain or underline the importance of getting your customer service right first time?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: Brands, British Gas, Consumer
Posted in Brands | No Comments »
Friday, August 6th, 2010
Councillors from Sandwell met the Education Secretary, Michael Gove, this week to ask him not to scrap BSF in their area. Many local authorities are considering legal action against the Government after investing huge amounts of money in the scheme. The Government has said that funding will still be available for repairs and refurbishment of schools. However, teaching unions continue to oppose the cuts. Chris Keates, general secretary of NASUWT, has said the Government has “jeopardised the educational future” of many children. With the pressure mounting on Michael Gove, the momentum for legal challenges by local authorities appears to be increasing.
Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com
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Tags: Education, local authorities, schools
Posted in Education | 1 Comment »
Wednesday, August 4th, 2010
Nintendo has scored a major victory against computer games pirates in a recent High Court case which found that “modchips” are illegal. The modchips in question fit into the cartridge slot of the Nintendo DS console and, by bypassing the console’s security systems, enabled gamers to play pirated games downloaded from the internet.
The defendants’ argument that the chips allowed users to play home-made games was rejected by the judge – the existence of a non-infringing use did not provide a defence.
The decision, which sets an industry precedent, will provide comfort to game and console manufacturers who have seen their sales suffer as a result of online piracy. More importantly, it will have some impact because Nintendo has tackled the technology that makes piracy possible, rather than fruitlessly pursuing individual downloaders.
Posted by Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com
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Tags: Computer Games, Intellectual Property, Nintendo, Piracy
Posted in Intellectual Property | No Comments »
Wednesday, August 4th, 2010
David Cameron launched the Conservative vision of a ‘Big Society’ as a central part of their election campaign earlier this year and this week announced the second wave of the NHS strand of this initiative – the Right to Request.
The Right to Request allows primary care staff the right to request to set up social enterprises and this week’s announcement includes 15 new projects which range from increasing access to psychological therapies, improving end of life care and a wider range of children services.
In an era with an increased focus on choice and effective commissioning this move has the potential to encourage the development of projects based on local knowledge. It is conceivable that this in turn may initiate different and new ways of providing personalised health and social care services which deliver greater quality and value for money and support the continued integration of these care pathways from the bottom up.
Posted by Emily Birkett
0121 237 3934
ebirkett@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: Commissioning, NHS, Public Sector, Social Care, Total Place
Posted in NHS, Public Sector | No Comments »
