Archive for January, 2011
Monday, January 31st, 2011
HM Revenue & Customs have issued draft guidance and a summary of their consultation process on various capital gains changes to be introduced in Finance Bill 2011. This follows their original announcements before Christmas, and they have invited further comments by 22 February 2011. One of these measures changes where the liability for a capital gains de-grouping charge will sit. After the change, the de-grouping charge will sit with the seller company, rather than in the company which is leaving the group. This is an important point to note when planning a corporate sale out of a group.
A knock on effect which could help the tax position of a group when selling a subsidiary, is that if the disposal of the shares in the subsidiary qualifies for substantial shareholding exemption (“SSE”), then following this change any de-grouping charge may also qualify for SSE.
Posted by Andrew Noble, who specialises in corporate and real estate tax, employee share incentives, UK and cross-border; advises clients from private individuals to listed companies; Chartered Tax Adviser.
Andrew Noble
0121 237 3952
anoble@brownejacobson.com
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Rating: 5.0/10 (1 vote cast)
Tags: capital gains, finance bill 2011, hm revenue and customs, hmrc, Tax
Posted in Tax | No Comments »
Monday, January 31st, 2011
Shortly after coming in to power the coalition government announced that it would end the “gold-plating” of EU directives – the practice implementing them in such a way that gives employees more generous entitlements. A recent European case shows the extent of the problem.
CLECA SA v Valor is a Spanish case where a local authority contracted out its cleaning services, and then brought them back in house. No assets where transferred in the process. The European Court of Justice held that this was not a transfer of undertakings under the Acquired Rights Directive, and as such CLECA’s cleaners did not transfer to the local authority’s employment.
In the UK the Acquired Rights Directive is implemented by the TUPE Regulations. A case on identical facts would be a transfer under TUPE. Given that such contracts are often terminated or transferred because of dissatisfaction with the current contractor’s performance, this situation is obviously more disadvantageous for UK employers than elsewhere in Europe.
Posted by Tom McLaughlin, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Tom McLaughlin
0207 337 1033
tmclaughlin@brownejacobson.com
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Rating: 6.5/10 (2 votes cast)
Tags: acquired rights directive, employment, tupe, tupe regulations
Posted in Employment | No Comments »
Monday, January 31st, 2011
When Dermot O’Leary prompted viewers to download singles of Diana Vickers and Michael Buble on the X Factor last October Ofcom decided to investigate. Despite accepting that this was due to a script error, the media watchdog was concerned that this had happened on two separate occasions and found that the X Factor had breached rule 10.3, ‘products or services must not be promoted in programmes’.
There is a further rule in the Broadcasting Code which prohibits product placement. However X Factor did not breach this rule as product placement would involve a reference to a product in exchange for valuable consideration. There was no financial arrangement in place here.
Interestingly, on 28 February 2011 new rules will come into effect which will subject to exceptions permit product placement in UK TV programmes. Despite this the new rules would not change the outcome for X Factor. This is because the new rules will still not allow positive references to products which directly encourage purchases.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: broadcasting code, ofcom, product placement
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Friday, January 28th, 2011
The Court of Appeal has recently ordered that Kingston upon Hull City Council who had acted properly and could not be criticised for any procedural step taken in care proceedings, pay the costs of the grandparents who joined the proceedings to be exonerated of all allegations of sexual abuse. The costs could be in excess of £50,000.
At first instance the family court Judge concluded that since it had been reasonable for the local authority to pursue the allegations against the grandparents, the door to a successful application for costs on their part was not open. On the particular facts of this case their Lordships disagreed, potentially landing the council with the legal bill (which has yet to be assessed).
The fact finding enquiry lasted 5 ½ weeks. One of the reasons that the grandparents costs were so high was that their solicitor was in court throughout this period. In future we recommend that local authorities make it absolutely clear when they believe unnecessary costs are being run up in open correspondence and ask the Judge hearing the care proceeding to make rulings on what representation is reasonable.
Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.
Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Court of Appeal, Kingston upon Hull City Council, local authorities
Posted in Local Authorities, Social Care | No Comments »
Friday, January 28th, 2011
Environment Secretary Caroline Spelman believes our woodlands can be ‘protected’ by selling off forests. She is backed by her Government who is expediting a change in legislation to ensure she has the power to transfer ownership out of Government hands.
The Government has already committed to taking 15% of the public forest estate out of state control over the course of this parliament (the largest amount allowable without new legislation); this consultation invites views on management options for the remaining 85% – with a view to generating £470m.
Is the justification that this revenue will better allow the Forestry Commission to focus on its role of responding to outbreaks of tree pests and diseases, regulating felling and (ironically) setting standards for sustainable forest management really going to wash with a public who is, in the vast majority, against the proposal?
A further justification is that the commission will no longer be the largest commercial operator in the sector it also regulates.
It seems the only value this proposal is currently looking to increase is purely financial.
Westley Laird
0115 976 6273
wlaird@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: Environment Secretary Caroline Spelman, Forestry Commission, public forest estate
Posted in Government bodies, Waste & Environmental | No Comments »
Friday, January 28th, 2011
The Health and Social Care Bill provides that the responsibility for public health will be shared between local councils, Public Health England (PHE) (a new quango), and GP commissioners. Such a significant change to the provision of health services in such a short timescale raises many challenges, and particularly so for councils.
The bill extends council scrutiny to cover all NHS-funded services and gives health and wellbeing boards powers to make sure NHS commissioners work together with town halls to improve the health of their communities. At the same time councils appear to receive less funding than the new central body PHE.
Also, when GPs take over the role of PCTs, they will be able to decide which hospitals get their business so hospitals which either cannot compete on price, or are deemed to be poor-performers, may struggle to survive. This may leave councils with the uncomfortable dilemma of deciding on the closure of local health services whilst also being responsible for how best to improve health and wellbeing locally.
Helene Maillet-Vioud
0115 976 6213
hmaillet-vioud@brownejacobson.com
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Rating: 4.5/10 (2 votes cast)
Tags: GP Commissioners, health services, Public Health England, The Health and Social Care Bill
Posted in Health, Local Authorities, Public Sector | No Comments »
Thursday, January 27th, 2011
A Judicial Review challenge is currently underway in the High Court by the British Banking Association (BBA). They claim that the Financial Services Association (FSA) and Financial Ombudsman Service have made an ‘error of law’ in retrospectively applying new, more stringent, rules to the sale of Payment Protection Insurance (PPI).
Should the BBA be unsuccessful, this could lead to a compensation pay out to customers of up to £3.2 billion, a figure based on just 20% of policyholders making a claim. In addition, at least 35 insurance firms could fold, costing £35 million to the FSA’s own compensation scheme.
An unsuccessful challenge may also set a precedent which could affect all products regulated by the FSA.
Consumers may receive compensation retrospectively, however with such high payout costs to the already hard hit banks; they may potentially face increased service charges as the banks try to recoup the monies lost.
Carolyn Parsons
0115 976 6574
cparsons@brownejacobson.com
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Rating: 8.0/10 (7 votes cast)
Tags: British Banking Association, Financial Services Association, payment protection insurance
Posted in Business recovery | No Comments »
Wednesday, January 26th, 2011
Comments made by Sky Sport presenters Andy Gray and Richard Keys about lineswoman Sian Massey have barely left the headlines since Saturday.
Gray has already suggested that he will bring a claim for unfair dismissal but should he and Sky be more concerned about a sexual harassment claim? The remarks are likely to amount to sexual harassment under the Equality Act 2010. Comments do not need to be directed at an individual or intended to be overheard. An alleged victim of sexual harassment only needs to show that the perpetrator engaged in unwanted conduct of a sexual nature which had the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Whilst Ms Massey was not an employee of Sky, Ms Jackson was and Sky could be vicariously liable for the comments unless they could show that they took all reasonable steps to prevent discrimination and, in any event, Gray could be personally liable.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Andy Gray, equality act 2010, Richard Keys, Sian Massey, unfair dismissal
Posted in Employment | No Comments »
Wednesday, January 26th, 2011
Law firm, ACS: Law and its client, MediaCat, were in court again this Monday regarding the decision to discontinue the 26 claims brought by MediaCat in respect of suspected illegal file sharing.
ACS: Law has been condemned in the press over its so-called ‘speculative invoicing’ – issuing thousands of letters to internet users who it suspects of illegal file sharing demanding cash settlements.
Judge Birss QC will rule later this week on whether ACS: Law and MediaCat can discontinue the cases without being joined by the actual copyright owners and, whether MediaCat should be banned from sending any more payment demands until its claims have been clarified. The Judge will also consider allegations of abuse of process made by the defendants’ Counsel.
The intense media and public backlash and the scrutiny under which both the claimant and the law firm representing it have been placed, will no doubt cause right holders and legal advisers alike to reflect on how they handle illegal filesharing in the future.
Posted by Sara McNeill, who specialises in non-contentious intellectual property matters, including licensing, franchise, collaboration and development arrangements and IP audits and strategy; experienced in drafting and advising on commercial agreements.
Sara McNeill
0121 237 3930
smcneill@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: ACS: Law v MediaCAT, copyright, illegal file sharing
Posted in Intellectual Property | 1 Comment »
Wednesday, January 26th, 2011
A survey by the Association of Teachers and Lecturers (ATL) shows that members are concerned over proposals to extend teachers’ powers to search pupils. They argue that searching pupils and confiscating weapons, mobiles and cigarettes will have a negative impact on their relationships with pupils, parents and carers and that they are educators, not police officers.
The White Paper only proposes to extend the ‘power’ to search pupils, which teachers can exercise at their discretion. Schools already have the legal power to search pupils and to use force where necessary, but often choose not to do so for fear of allegations being made against them and the cost involved with using an external body to carry out such searches.
What is needed is clearer guidance on when and how teachers should exercise this power. Hopefully details of forthcoming guidance will be included in the Education Bill due to be published in the next few days.
Posted by Dai Durbridge, who specialises safeguarding of children and vulnerable adults in education, social care and health settings; defending claims against education, social care and health providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Association of Teachers and Lecturers, Education, power to search pupils, schools
Posted in Education | No Comments »
Friday, January 21st, 2011
The News of the World’s legal worries continued to grow this week as two further celebrities applied to the courts for disclosure of information regarding alleged phone hacking in connection with the newspaper.
Steve Coogan and Andy Gray have requested that private investigator Glenn Mulcaire reveal for whom he was working when he allegedly hacked into the voicemail on their mobile phones.
This is not the first time that The News of the World journalists have been linked to phone hacking. Reporter Clive Goodman was jailed in 2007 for pleading guilty to phone message interception charges.
The court’s decision as to whether to grant the request for information has been adjourned until 31 January to allow the claimants to submit statements on the calls they claim were intercepted. We can only hope that, if breaches of privacy laws are proved, the Court continues to take a firm stance.
Oliver Laing
0115 908 4854
olaing@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: alleged phone hacking, privacy laws, The News of the World
Posted in Commercial Litigation, In-house Lawyers, Intellectual Property | No Comments »
Friday, January 21st, 2011
Following an investigation by the Office of Fair Trading (OFT), beginning in 2005, it was found that Safeway had been guilty of anti-competitive practices in relation to the purchase of dairy products. The OFT has indicated that the financial penalty could be in excess of £10M.
Safeway (now owned by Morrisons Plc) brought a claim (Safeway Stores Limited v Twigger) against its directors (who sat on the board at the time of the anti-competitive practices) seeking an indemnity from the directors for any financial penalties that they may have to pay.
The Court of Appeal found that the liability for any financial penalty imposed under the Competition Act 1998 was “personal” to the undertaking. The Court emphasised that penalties under the act impose liability on the undertaking itself and it was not the case that the undertaking was vicariously liable for actions of its directors and employees.
Overall, a good decision for directors and their insurers.
Posted by Gordon Monaghan , who specialises in commercial dispute resolution nd professional negligence defence work; advises on contentious corporate matters, approaches to restrictive covenants and general contractual disputes.
Gordon Monaghan
0115 976 6554
gmonaghan@brownejacobson.com
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Rating: 8.0/10 (1 vote cast)
Tags: anti-competitive practices, Competition Act 1998, Safeway Stores Limited v Twigger
Posted in Commercial dispute resolution, Competition | No Comments »
Friday, January 21st, 2011
The decision by the European Court of Human Rights in MGN v UK should not be seen as an excuse for the government to abolish the current system of conditional fee agreements.
The system was introduced to ensure that ordinary UK citizens would in the absence of being able to obtain public assistance still be able to take proceedings to defend their position in a whole range of areas
In this instance Miss Campbell is no ordinary UK citizen but a millionaire with the ability to pay her lawyers.
The system was never designed to be abused by the super-rich in libel and defamation cases and so the decision of the ECHR on the facts of this case is absolutely right.
The legal profession needs to take a reasonable and sensible approach to how we approach these arrangements and if we don’t do so soon this essential aid ensuring that all have at least the opportunity to defend their position will be gone forever!
Posted by Declan Cushley, who specialises in intellectual property dispute resolution involving infringement and validity of patents, trade marks, designs and copyright, as well as reputation management and domain name disputes.
Declan Cushley
0121 237 3993
dcushley@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: defamation cases, European Court of Human Rights, Naomi Campbell v Daily Mirror
Posted in Commercial Litigation, Intellectual Property | 1 Comment »
Thursday, January 20th, 2011
The costs of reorganisation from PCTs and SHAs into a National Commissioning Board and consortia of GPs are put at around £1.2 billion, justified by anticipated savings in commissioning in future.
GP consortia, led by ‘pathfinders’ already covering half the country, will have statutory accountability for around £80 billion of NHS budget to commission services, and there are real ‘sticks’ put into the hands of the Commissioning Board, which can dissolve the consortium, and sack the accountable officer, if they are failing. There are, of course, ‘carrots’ as well, in the form of quality premiums for GPs where the consortium performs well (ie stays well within budget, since there’s a statutory duty not to overspend anyway).
The Royal College of GPs has already expressed concern at GPs being seen to have a financial interest in making, effectively, rationing decisions, and the quality premiums could also pose challenges for the performance management of individual GPs and practices within the consortium.
Posted by Ben Troke, who specialises in clinical negligence; health law; access to NHS and social care and funding; Court of Protection / Mental Capacity Act; Deprivation of Liberty Safeguards; NHS Constitution and patient rights.
Ben Troke
0115 976 6263
btroke@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: GP Consortia, Health and Social Care Bill, National Commissioning Board
Posted in Health, Social Care | No Comments »
Thursday, January 20th, 2011
Despite the 500+ pages of the Health and Social Care Bill (and impact document), published around 2.30 this afternoon, GP consortia in particular might feel that things are still a little vague.
So far all we know about the formalities of consortia is that they must tell the Commissioning Board their name, members, and area, name an accountable officer, and present a draft constitution setting out how they’ll make decisions and deal with conflicts of interest.
While the extent of the statutory duties consortia will actually inherit from SHAs and PCTs remains unclear (we still don’t know, for example, where Individual Funding Requests or Continuing Healthcare will go) it might be hard for the Pathfinders to make their plans, and the absolute statutory duty to break even, and to operate “effectively, efficiently and economically” will make more sense when the consortia know the full range of what they are expected to do.
Posted by Ben Troke, who specialises in clinical negligence; health law; access to NHS and social care and funding; Court of Protection / Mental Capacity Act; Deprivation of Liberty Safeguards; NHS Constitution and patient rights.
Ben Troke
0115 976 6263
btroke@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Commissioning Board, GP Consortia, Heath and Social Care Bill
Posted in Health, Social Care | No Comments »
Thursday, January 20th, 2011
The Government has revealed plans to set minimum alcohol price levels in England and Wales. The ban, on the sale of alcohol below the rate of duty plus VAT, will see a minimum price of 38p for a can of lager and £10.71 for a litre of vodka.
This move is almost certainly not going to affect smaller retailers, the vast majority of whom are not able to sell at such low prices. The move is aimed at supermarkets which have been using alcohol as a ‘loss leader’. However all retailers should keep an eye out for any further increases as this move has been referred to as ‘an important first step’.
This is a weak move by the Government and is unlikely to significantly reduce crime and alcohol related health issues. The question remains as to how high the price floor must be in order to be effective.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Brands, minimum alcohol prices, retailers, sale of alcohol
Posted in Brands, Food & drink, Regulatory | No Comments »
Thursday, January 20th, 2011
It has been announced that a £90 million 2011-12 package of funding will be given to sixth form colleges for improving buildings and to help meet the demand for additional 16-19 student places which will rise steeply after the compulsory school-leaving age rises to 18 in 2013.
It also makes sixth-form colleges eligible for devolved formula capital for the first time so that funding for maintenance will be given directly to the institution. According to the Government this will give the average sixth-form college an additional £40,000.
David Igoe, chief executive of the Sixth Form Colleges Forum, welcomed the government’s announcement stating that “sixth form colleges have missed out on capital over the last two years and it is very encouraging to see the government redressing this unfairness.”
Ironically, this announcement comes at the same time as hostility grows over the government’s proposal to axe EMA. Many commentators argue that this proposal will cause the poorest students to drop out of college and is grossly ‘unfair’.
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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Rating: 0.0/10 (0 votes cast)
Tags: developed formula capital, Education, sixth form colleges
Posted in Education | No Comments »
Thursday, January 20th, 2011
The final twist in the long-running ‘breach of confidence’ battle between Naomi Campbell and the Daily Mirror is the European Court of Human Rights Judgment in MGN v UK, which sets out a critique of the UK claims funding regime.
Revelations by the Mirror in 2001 that Ms Campbell was receiving treatment for drug abuse resulted in a string of litigation and a costs claim by Ms Campbell of over £1 million, including around £280,000 in success fees under a CFA.
Looking at the balance between the right to a private life and freedom of expression, the ECHR found the risk of substantial success fees had a disproportionate chilling effect on free expression, and so found a violation of the convention.
The Government is currently consulting on the impact of success fees in litigation. There is widespread feeling that these, and the ‘costs race’ they create, stifle a Defendant’s access to justice by reducing their ability to defend appropriate claims, for fear of disproportionate costs.
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: 10.0/10 (3 votes cast)
Tags: breach of confidence, cfa, daily mirror, litigation, naomi campbell
Posted in Insurance, Insurance - Advisory | No Comments »
Thursday, January 20th, 2011
Yesterday saw the publication of a report by Labour MP Graham Allen calling for more early intervention by the state in the childhood of deprived children. That Mr Allen should have reached this conclusion in his report comes as no surprise. This is an issue he has championed for years. Presumably the Government agrees, because it asked him to produce this report.
More interesting than the “what” question is the “how” question, particularly with budgets so tight. Graham Allen’s recommendations include regular assessments of all pre-school children, a national parenting programme in the UK, and an independent early intervention foundation to drive early intervention forward, assess policies and attract investment from the private and voluntary sectors.
The true test of these initiatives will be the extent they improve the daily lives of individual children. Every child, and every child’s circumstances, are different. National policies and programmes usually fail to penetrate that far. This is why improving the life chances of deprived children has proved so difficult. But we must continue to try.
Posted by Chris Webb-Jenkins, who specialises in defending claims against education and care providers and their insurers; risk management, stress, information management and child protection issues.
Chris Webb-Jenkins
0115 976 6175
cwebb-jenkins@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: children's services, parenting programme, Social Care
Posted in Local Authorities, Public Sector, Social Care | No Comments »
Tuesday, January 18th, 2011
As councils are forced to make cuts to their children’s services budgets the future of many Sure Start Centres is under threat. The ring fencing of funding for Sure Start Children’s Centres has been removed, leaving them vulnerable to closure. It is estimated that one centre in each council face closure.
Before councils move to close any Sure Start Centres it is important that they bear in mind their duties under the Childcare Act 2006 “to consult before opening, closing or significantly changing children’s centres”. In drawing up any plans for closing a children’s centre, the local authority will need to consider whether it can continue to adequately meet its duty under the act to make arrangements for sufficient children’s centres to address local needs. Any failure to do so, or to carry out a sufficient consultation will leave their decision open to judicial review.
Kate Mills
0115 976 6104
kmills@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Childcare Act 2006, children's services budgets, Sure Start Centres
Posted in Education, Local Authorities, Social Care | 2 Comments »
