Archive for March, 2011
Thursday, March 31st, 2011
The Government has announced that a reduced rate of inheritance tax will apply where 10% or more of a deceased’s net estate (after deducting inheritance exemptions, reliefs and the nil rate band) is left to charity. In those cases, the current 40% rate will be reduced to 36%. If enacted, this will apply to deaths on or after 6 April 2012.
Whilst this measure is otherwise commendable, it is important to sound a cautionary note as regards how this may be incorporated into a Will. The temptation will be to leave a sufficient share of residue to charity in order to secure the reduced rate. However, this conflicts with the usual advice that it is better not to make a charity a residuary beneficiary (as this can lead to difficulties, and sometimes even litigation). Testators will need to be mindful of this when making their Wills if they wish to secure the reduced rate and yet not create difficulties for their families after their deaths.
Posted by Stephen Howe, who specialises in advice to private clients on personal tax planning, wills and trusts; experienced in the preparation of specialist trusts, in particular employee benefit trust.
Stephen Howe
0115 976 6161
showe@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: budget 2011, charity, inheritance tax, wills and estates
Posted in Tax, Wills and estates | No Comments »
Thursday, March 31st, 2011
This week saw the outcome of Football Dataco’s (the FA Premier League subsidiary) latest court fixture, involving its “Football Live” database, comprising data from matches in progress.
Sportradar, the European-based defendants, provide “live scores” data to UK companies including bet365.
One issue involved “database right”. “Extraction” or “re-utilization” of a qualifying database would infringe this right, and re-utilization as defined includes “transmission”. As UK database right only covers acts within the UK, was Sportradar’s provision of data over the internet (from Austrian servers) extraction or re-utilization within the UK?
Dataco argued that a transmission needs both a sender and receiver, so takes place in both countries. Sportradar says “transmission” occurs only where the data is sent.
Although Sportradar’s view suggests defendants could escape liability just by having overseas servers, theirs is surely the only practical interpretation, given that finding otherwise could mean website proprietors having to comply with copyright laws worldwide.
The Court of Appeal referred the question to the ECJ. You could say all bets are off…
Laura Phillips
0115 976 6182
lphillips@brownejacobson.com
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Rating: 7.5/10 (2 votes cast)
Tags: copyright infringement, copyright laws, database right, database rights, dataco
Posted in Commercial Litigation, Intellectual Property | No Comments »
Thursday, March 31st, 2011
Tesla has issued proceedings against the BBC for malicious falsehood and defamation following Top Gear’s review of Tesla’s Roadster car.
The defamation claim relates to a statement that the electric car would only last 55 miles on a test track, despite the manufacturer claim of 200 miles. Tesla says the statement suggests it had “grossly misled potential purchasers” but surely most drivers know that a car’s range is reduced if driven hard, especially around a race track.
The malicious falsehood claim appears stronger. The claim states the Roadster never actually ran out of charge, despite footage showing it being pushed into a garage. Whether the footage amounts to malicious falsehood may depend on whether such footage is widely understood to be dramatised for entertainment purposes, or whether it should be taken to be a serious review of the car’s performance.
Tesla are evidently upset but litigating will only draw attention to other features of the Top Gear review, potentially exposing their cars to further negative coverage.
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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Rating: 9.3/10 (3 votes cast)
Tags: BBC, malicious falsehood, Tesla, Tesla's Roadster car, Top Gear
Posted in Brands, Intellectual Property | No Comments »
Thursday, March 31st, 2011
The Court of Appeal has today upheld a High Court decision that clauses inserted into contracts withdrawing rights on insolvency will not be enforceable.
According to the Court of Appeal judgment in Towergate Stafford Knight Company Limited (now Folgate London Market Limited) v Chaucer Insurance Plc any such clause would fall foul of the anti-deprivation principle and is therefore void.
The anti-deprivation principle is a common law rule that prevents parties from depriving their creditors of the benefits of their assets should they become insolvent.
This Judgment demonstrates the ongoing relevance of the anti deprivation principle and the profound effects that this can have on commercial contracts. Further guidance on the principle can be expected to come from the Supreme Court when the Judgment in Belmont is handed down.
Posted by Paul Cox, specialising in: large loss and catastrophic cases including brain and spinal injuries; fatal claims and those involving chronic pain syndrome; regularly asked to advice on policy liability/interpretation
Paul Cox
0121 237 3912
pcox@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: Chaucer, Commercial contracts, Court of Appeal, creditors, insolvency, Towergate
Posted in Business recovery, Commercial contracts, Insurance, Outsourcing, Professional Indemnity | No Comments »
Thursday, March 31st, 2011
A new report by senior civil servant David Norgrove sets out proposals for a large scale overhaul of the family law system. Prominent within the report is the proposal that grandparents are given legal rights to maintain contact with their grandchildren after a family breakdown or divorce.
The government is keen on this idea, recognising the vital role many grandparents play, but sound child protection practice will require consideration in each case of whether contact with the grandparents will truly benefit the child. In a few instances it will not. Often these matters are not straightforward.
The plans are to make the arrangements through parenting agreements drawn up with the help of a mediator, rather than through potentially confrontational hearings in court. However, these may prove difficult for grandparents to enforce given the reduction in public funding available for family matters.
How good is a right like this if it cannot be enforced?
Laura Richards
0115 976 6249
lrichards@brownejacobson.com
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Rating: 10.0/10 (4 votes cast)
Tags: child protection, David Norgrove, family breakdown, family law, grandparents, parenting agreements
Posted in Social Care | 1 Comment »
Thursday, March 31st, 2011
This week the High Court found in favour of a teacher who alleged he was wrongfully arrested following an allegation of assault by a pupil. Regardless of his willingness to attend a police station for questioning the police chose to arrest him. No further action was taken following the arrest.
Whilst the court’s agreed that the arrest was wrongful, it does not follow that the CRB check will be clear. It is often the case that police include arrest information on CRB disclosures regardless of outcome, putting the onus on employers to make the decision on suitability. The Protection Freedoms Bill offers a token improvement by giving individuals the right to request a review of the disclosure. If the courts wanted to ensure that the police took CRB disclosures more seriously, they should have imposed a duty to act reasonably when deciding the Desmond case in December.
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: 10.0/10 (1 vote cast)
Tags: CRB checks, Education, employment, Social Care, The protections Freedom Bill
Posted in Education, Employment, Health, Social Care | No Comments »
Thursday, March 31st, 2011
The call that we must learn lessons from Fukushima is being heard loud and clear. The confidences of many have been tested and the future of nuclear energy once more uncertain. But with viable energy alternatives such as carbon capture technology still years away, a nuclear outlook whether we like it or not is a distinct possibility for the future.
Despite international debate about the future of nuclear power, a u-turn in the UK looks unlikely. David Cameron has openly committed the UK to a partially nuclear future. The UK and EU have ensured that full testing and reviews of all nuclear plants will be conducted. However, many are left questioning, how, following Japan, can any government be certain as to the safety of such an energy source?
One lesson we can certainly learn from Japan is nothing comes with certainties attached.
Holly Mitchell
0115 908 4886
hmitchell@brownejacobson.com
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Rating: 8.0/10 (1 vote cast)
Tags: environment, EU, Fukushima, Japan, nuclear energy
Posted in Waste & Environmental | No Comments »
Wednesday, March 30th, 2011
Justice Secretary, Kenneth Clarke has announced today that the Bribery Act 2010 will come into force on 1 July 2011.
Clarke tried to dispel the concerns expressed by businesses saying that ‘combating the risks of bribery is largely about common sense, not burdensome procedures’, and that he does not expect a ‘large number of prosecutions’.
The guidance clarifies that ‘bona fide hospitality’ and similar expenses on improving the image of a commercial organisation or establishing ‘cordial relations’ are not intended to be caught by the Act. Facilitation payments will continue to be caught by the Act as they are under previous bribery laws.
The guidance clarifies what is meant by “adequate procedures.” The adequacy of procedures will be considered in accordance with the risk of bribery faced by an organisation in light of its size and type, though other factors will also be relevant.
The guidance will no doubt help businesses to prepare for the Act. How it will ultimately be enforced remains to be seen.
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: 10.0/10 (1 vote cast)
Tags: bribery act 2010, bribery laws, hopitality, Kenneth Clarke
Posted in Brands, Manufacturing, Regulatory | No Comments »
Wednesday, March 30th, 2011
A man who made a £1.35m claim for damages for injuries in a car crash has been jailed for a year after a court found him guilty of contempt of court.
It is good to see the courts finally taking a tough stance on exaggerated claims but it is likely that insurers will have to continue to pursue the contempt of court route, usually after the civil claim has concluded, until judges are prepared to adopt a similarly robust approach to dealing with claims at trial.
The position of the courts so far has been to penalise fraudulent claimants in costs only. Perhaps with insurers increasingly willing to pursue contempt of court proceedings, and by obtaining results such as here, it is hoped that judges may be persuaded to adopt a similarly robust approach when faced with fraudulent claims.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 10.0/10 (8 votes cast)
Tags: exaggerated claims, fraudulent claims, insurers, steven conway
Posted in Employers & Public Liability, Insurance | No Comments »
Tuesday, March 29th, 2011
The Secretary of State for Communities and Local Government, Eric Pickles has announced that the Code of Practice on Workforce Matters in Local Authority Service Contracts (the so-called “two-tier code”) is repealed with immediate effect.
The code sought to ensure that new-joiners were given comparable terms and conditions (including pensions) to those former local authority staff who had transferred to the service provider under TUPE.
The government claim that abolishing the code will “ help create a level playing field, ensure more opportunities for innovation, help ensure better value for taxpayers’ money in the provision of public services, and remove red tape that hinders job creation.”
However, service providers seeking to give new-joiners less favourable terms and conditions will have to exercise caution to avoid claims for discrimination or inequality of contract terms under the Equality Act 2010.
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: 10.0/10 (2 votes cast)
Tags: Eric Pickles, The Equality Act 2010, tupe, two-tier code
Posted in Employment, Pensions | No Comments »
Monday, March 28th, 2011
A contract claim where the terms and conditions states “subject to English Law and practice” does not necessarily confer jurisdiction to the English courts.
In Mujur Bakat SDN BHD v Uni Asia General Insurance BHD the Commercial Court was asked to review the situation where proceedings had been issued in the Commercial Court and leave given to serve on the defendants in Malaysia where the companies were based. The claimants were also Malaysian companies but the parties had incorporated the ITC clauses in their contract.
The claim concerned two alleged breaches of warranty and the court needed to consider whether the English courts were the most appropriate forum for trial which meant that the court had to look at matters such as witness availability and where the parties carried on business. Clearly on these factors the natural place for the case to be heard was Malaysia.
Yet another decision demonstrating how important it is to be precise in drafting contractual terms so that they accurately reflect what the parties intended….
Posted by Nichola Evans, who specialises in professional indemnity work , directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.
Nichola Evans
0207 337 1019
nevans@brownejacobson.com
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Rating: 9.5/10 (4 votes cast)
Tags: commercial court, ITC clauses, Mujur Bakat SDN BHD v Uni Asia General Insurance BHD
Posted in Commercial contracts, Insurance, Outsourcing | No Comments »
Monday, March 28th, 2011
The latest verdict of think tank the King’s Fund claims that, unless GPs are put under greater pressure to work with local authorities providing jointly-planned services, the government’s health reforms risk failing vulnerable groups.
The report criticises joint working plans under the Health and Social Care Bill, claiming they could undermine services for people with mental health problems, learning disabilities, and multiple long-term conditions, all of whom require jointly-planned services.
GPs have not traditionally had a role in tackling health inequalities; the key concern is that as councils take responsibility for public health, GPs will shun areas of care for vulnerable groups and effective joint working will fail.
The report recommends that GP performance management regimes are aligned with council targets, and that GPs should take on a new role as care co-ordinators, pointing patients towards wider forms of social care.
The effect of the reforms remains to be seen but the Government has a way to go to dispel such fears.
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: 10.0/10 (3 votes cast)
Tags: gp, GP commissioning, Health and Social Care Bill, kings fund, local authorities
Posted in Government bodies, Health, Local Authorities, NHS, Public Sector | No Comments »
Friday, March 25th, 2011
M&S has purchased ‘interflora’ as an adword (a Google search for Interflora now displays an advertising link to M&S’ flower delivery service). Does M&S’ use of the word infringe Interflora’s trade mark rights?
The Advocate General has now provided an opinion in the case of Interflora v Marks & Spencer stating that a trade mark owner can forbid the use of a trade mark in such circumstances where the advertising link:
- is liable to lead some members of the public to believe that the competitor is a member of the trade mark owner’s commercial network; and/or
- displays or mentions the trade mark and the advertiser thereby attempts to benefit from its power of attraction, reputation or prestige
Surprisingly the Advocate General believes that the advertisement may confuse searchers in to believing that M&S is part of the Interflora network. If the court’s hypothetical searchers are so easily confused then adword purchasers will need to select their adverts very carefully.
Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com
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Rating: 9.3/10 (4 votes cast)
Tags: advertising, advocate general, Brands, Intellectual Property, ip, online advertising, Trade Mark
Posted in Advertising & Marketing, Brands, Intellectual Property | No Comments »
Friday, March 25th, 2011
The budget may help out motorists and truckers fearful of oil hikes but it does nothing for the environment. George Osborne has abandoned the fuel escalator that would have seen a 5p per litre increase on fuel duties and surprisingly cut it by 1p per litre. To counterbalance the £2bn cost of the cut, he has introduced a fair fuel stabiliser which will hit the coffers of the North Sea oil producers.
This measure, though affords Osborne short term popularity, and may not last that long as the regime depends on oil prices remaining high; if they drop, the escalator starts up again.
With the introduction of a scheme that may in fact cause greater volatility in the oil market the budget does nothing to really allay fears surrounding the price of oil. Further, by not attempting to stymie the UK’s addiction to fossil fuels, it does not assist in the goal of weaning ourselves off oil and onto more sustainable fuels.
Posted by Westley Laird, who specialises in environmental law, specifically advising nature conservation, local authority and corporate clients and administrative law, with a focus on judicial review.
Westley Laird
0115 976 6273
wlaird@brownejacobson.com
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Rating: 9.0/10 (2 votes cast)
Tags: fair fuel stabiliser, fossil fuels, fuel prices, George Osborne, the budget 2011
Posted in Waste & Environmental | No Comments »
Friday, March 25th, 2011
In a response to Asda’s Price Guarantee promotion, Tesco’s PriceCheck scheme promised to refund shoppers double the difference, if they could show that the products they bought at Tesco were on sale for less in Asda. However Tesco has now changed the offer to limit refund vouchers to a maximum of £20 per shop.
The reason? It seems that some customers were making money out of Tesco by specifically seeking out products which a competitor had on promotion. One consumer claimed to have made £600 from the promotion already.
Tescos said that fewer than one in 5,000 customers had been awarded vouchers over £20. However Asda took the opportunity make this statement:
“If you claim to be the cheapest, call me old-fashioned, but it helps to really be the cheapest.”
The moral of the story? Make sure you think carefully and get your terms and conditions right BEFORE you go to the market with a promotion!
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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Rating: 10.0/10 (3 votes cast)
Tags: advertising, Asda's price guarantee promotion, promotions, Tesco's PriceCheck
Posted in Advertising & Marketing, Brands, Regulatory | 1 Comment »
Thursday, March 24th, 2011
The case of Dame Vivienne Westwood v Anthony Knight [2011] EWPCC 008 witnessed the first trial heard by HHJ Birss QC under the new Patents County Court (PCC) procedural rules.
Issues of trade mark infringement, copyright infringement, and passing off aside, the judgment has attracted interest because of Judge Birss’ flexible and streamlined approach to trial management.
In particular, the solicitors for the claimant complimented the new regime stating that it provided a “faster, cheaper way of getting expert justice in IP cases”. As an example, the Court ordered a telephone hearing a few days before trial in order to address issues which would have otherwise taken up valuable time at trial.
The case highlights Judge Birss’ hands-on approach to case management and makes the PCC look very attractive as a faster and cheaper alternative to the High Court, particularly for claimants who feel confident that they can fund their case within the £50,000 costs cap.
Posted by Ryan Harrison, who specialises in intellectual property agreements and disputes, licensing, commercial contracts, and commercial and intellectual property issues arising from M & As and disposals.
Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: Intellectual Property, ip, patents county court, PCC
Posted in Intellectual Property | No Comments »
Thursday, March 24th, 2011
Some encouragement for science, innovation and enterprise was detected in the budget. There is a doubling of Entrepreneurs’ Relief and an increase in tax credit for SMEs which seek to resolve technological or scientific uncertainties or make technological or scientific advancements. Although not all of James Dyson’s recommendations for encouraging innovation were adopted it is a start. Also for those concerned with the science of space exploration, investment of £100m in new research centres was announced. One additional investment caught our eye. Green Investment Bank launch capitalisation increased to £3bn in 2012. The aim of the Bank is to help investors raise money for clean energy projects. Inventors concerned with green projects which may not otherwise receive funding may gain help from the new bank. We thought there was some encouragement for innovators in this budget but will it be enough to repatriate more manufacturing to these shores as the Chancellor hopes.
Posted by Peter Ellis, who specialises in commercial litigation or dispute resolution; intellectual property disputes e.g. trade marks, copyright, designs issues; breach of contract and claims through interruptions to trade.
Peter Ellis
0115 976 6269
pellis@brownejacobson.com
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Rating: 10.0/10 (3 votes cast)
Tags: budget 2011, clean energy projects, entrepreneurs relief, green investment bank, Intellectual Property, sme tax credit
Posted in Intellectual Property | No Comments »
Wednesday, March 23rd, 2011
If you dig a bit further behind the headline grabbing points in today’s Budget speech about fuel duty etc, there are a couple of good news stories in the SME corporate sector.
The Chancellor has announced that entrepreneurs relief from capital gains tax is being expanded, by doubling the maximum lifetime threshold of chargeable gains which can qualify for entrepreneurs relief, from £5M to £10M per individual. This relief brings the rate of CGT down from 28% to 10%, and can apply on certain business and company sales (if you meet all the conditions). So that’s possibly up to an extra £900k off your CGT bill, if you qualify, and could be very interesting for anyone wondering if now’s the time to sell up in the SME market. Introduced from April 2011.
He’s also announced an increase in the rate of research & development tax relief for SMEs, up from 175% to 200%, from April 2011, and a further increase to 225% from April 2012.
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: 10.0/10 (2 votes cast)
Tags: budget 2011, entrepreneurs relief, research & development tax, SME's, tax relief
Posted in Manufacturing, Tax | No Comments »
Wednesday, March 23rd, 2011
The Chancellor has just announced in the 2011 budget that twenty-four new university technical colleges (UTCs) will be funded and there will be 100,000 places in a new work experience scheme over the next few years. In addition 40,000 extra apprenticeships will be funded for young unemployed people.
No doubt the details of these schemes will emerge in due course; however, this is a clear indication of the government’s intention to improve the vocational opportunities out there for the young in a bid to reduce unemployment.
The announcement on UTCs reflects Prof Alison Wolf’s report published earlier this month and recognises the need for children to continue with essential academic subjects such as Maths and English alongside vocational studies. Whilst the announcement is not as ambitious as Lord Baker (who is championing the growth of UTCs on a much larger scale) would have hoped, the topic of UTCs is likely to gain momentum and will feature heavily in the government’s response to Prof Wolf’s report.
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: 10.0/10 (2 votes cast)
Tags: 2011 budget, George Osbourne, University technical colleges, vocational training
Posted in Education, Employment | No Comments »
Monday, March 21st, 2011
The government has now clarified in the new default retirement age draft regulations that the existing rules allowing employers to retire employees by issuing retirement notices on or before 5 April 2011 apply to all employees who have reached age 65 at any time before 1 October 2011. This is a change to the original draft, which stated it was only applicable to those whose 65th birthday falls between 6 April and 1 October 2011.
As a reminder, those employees who will be aged 65 or over by 30 September 2011 must be informed by their employer of their intention to retire them on or before 5 April 2011. If an employee asks to work beyond the retirement date proposed by their employer, an employer may safely grant an extension of up to six months without losing the right to retire them at the end of this period.
For further information and practical guidance please see our bulletin.
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: 10.0/10 (2 votes cast)
Tags: default retirement age, employment, retirement
Posted in Employment | No Comments »
