Archive for March, 2011
Monday, March 21st, 2011
HMRC have recently published revised guidance on the SDLT anti avoidance rules, set out in section 75A Finance Act 2003. This legislation can catch SDLT saving schemes which involve more than one step or transaction, and which try to reduce the overall amount of SDLT payable as a result.
The new guidance sets out further examples which HMRC think will be caught by the legislation, updating their previous guidance. This can potentially catch a series of transactions which are not specifically intended to avoid SDLT, and so if you are putting together a series of steps in one overall property transaction, you should take note.
Their updated guidance shows HMRC’s increasing concern with SDLT avoidance schemes. A Tribunal decision on a challenge by HMRC to an SDLT scheme involving sub-sale and partnership reliefs is also due soon. If HMRC are successful in their challenge, expect further clampdown on SDLT schemes inside and outside of the courts.
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: 9.0/10 (3 votes cast)
Tags: hmrc, SDLT, stamp duty land tax
Posted in Property, Tax | No Comments »
Monday, March 21st, 2011
We understand that the long awaited Ministry of Justice guidance on the Bribery Act 2010 may finally be released as early as next week. However a draft of the guidance appears to suggest that foreign companies listed on the UK stock market but with no other presence in the UK may have little to fear.
It is suggested that these foreign companies may gain an advantage – some would say unfair – over UK companies as the guidance suggests that they may not be liable for prosecution under the Act. The change in treatment of these companies comes after pressure from the London Stock Exchange and investment banks which generate millions from foreign listings. Some might think it ironic that the government should consider reining back the scope of the Bribery Act for a financial gain!
Nevertheless, this highlights the competitive pressure that has compelled the Government to review the Act before implementation.
Firms will have 3 months from the date of the release of the guidance to prepare for the full force of the Act but they should not delay in their preparation.
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: 9.0/10 (2 votes cast)
Tags: London Stock Exchange, Ministry of Justice, The Bribary Act 2010
Posted in Advertising & Marketing, Brands, Manufacturing, Regulatory | No Comments »
Friday, March 18th, 2011
Last week, the UK, Scottish and Welsh Governments published a joint consultation on their proposed regulations for restricting advertising and trading in open places during the 2012 Games.
The London Olympic Games and Paralympic Games Act 2006 (“Act”) provides for regulations to be created in relation to the control of advertising and trading to help prevent ambush marketing and preserve the exclusive association rights of the 2012 Games sponsors.
The consultation seeks views on the scope of the proposed restrictions to advertising and trading in open places, the areas (zones) to which the regulations will apply and the duration of the regulations. It is hoped that the restrictions and associated penalties will be clear and reasonable, enabling individuals and businesses to manage their activities appropriately and be confident that they are not in breach of the regulations.
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: 7.8/10 (4 votes cast)
Tags: 2012 Olympics, advertising, The London Olympic Games and Paralympic Games Act 2006, trading regulations
Posted in Advertising & Marketing, Intellectual Property | No Comments »
Thursday, March 17th, 2011
Property tycoons Vincent and Robert Tchenguiz hit the headlines earlier this month when they were briefly arrested and questioned by British police about their role in the failure of Icelandic bank, Kaupthing.
The Tchenguiz brothers were yesterday granted permission by the High Court to sue Kaupthing Bank for one billion damages following the banks failure to block the claim on the grounds that the English court did not have jurisdiction to hear it.
The brothers had also brought claims in the Icelandic courts which had been thrown out.
The result may be a victory at great cost for the brothers, as the Icelandic bankruptcy courts may refuse to recognise an English judgment on the validity of the brother’s claims.
Posted by Dominic Offord , who specialises in business recovery and insolvency matters for creditors and practitioners including transaction avoidance claims; commercial dispute resolution; experienced litigator on high value and warranty claims.
Dominic Offord
0115 976 6149
dofford@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: business recovery, Icelandic bank, Icelandic bankruptcy, insolvency, Kaupthing Bank, Vincent and Robert Tchenguiz
Posted in Business recovery, Litigation | No Comments »
Thursday, March 17th, 2011
How will we fund the future care of the elderly? We hear a lot of public discussion on this big and difficult public policy issue. Today the King’s Fund, well respected for its impartiality and measured approach, has published a report (Social care funding and the NHS – An impending crisis?) warning that the current spending settlement undershoots current spending projections by at least £1.2 billion by 2014.
So services must be reformed. The King’s Fund calls for greater promotion of health and well-being by local authorities, a better understanding of local needs, and spending more closely targeted to those needs. All good stuff. But by far the most ambitious recommendation is to create “a single strategic assessment of the funding needs of the NHS and social care”.
In plain terms, that would effectively mean a single budget for both health and social care. To date this idea has largely been dismissed to the “too-difficult” basket. But times change. If the Dilnot Commission echoes the King’s Fund when it reports in July, the pressure for change will
grow.
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: 10.0/10 (2 votes cast)
Tags: budgets, health and social care, social care funding and the NHS, The King's Fund
Posted in Local Authorities, NHS, Social Care | No Comments »
Wednesday, March 16th, 2011
On 28 February electronics manufacturer LG successfully applied for an ex parte order that up to 300,000 Playstation 3 consoles be seized from Sony’s EU distribution centre, and that Dutch customs seize any further imports, effectively cutting off the entire EU supply chain.
The order was granted as part of a dispute over Sony’s use of blu-ray technology in its Playstation 3 consoles, technology LG says is protected by various patents.
The customs detention and seizure orders have now been lifted with LG being ordered to pay significant legal costs and damages, however the main action continues with trial scheduled for 18 November 2011.
Given that in the main proceedings LG’s damages claim would almost certainly be based on royalties, it appears that in flexing its legal muscles to cut off supply the company has temporarily limited the value of any damages claim by interrupting the supply chain and reducing the number of consoles sold. The old adage ‘look before you leap’ springs to mind…
Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com
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Rating: 9.8/10 (5 votes cast)
Tags: LG, Patents, Playstation 3, Sony
Posted in Intellectual Property | No Comments »
Tuesday, March 15th, 2011
There is no statutory ban on tweeting from court. Twitter was not even hatched as a concept when the Contempt of Court Act of 1981 was drafted.
Following the permission granted to tweet proceedings from inside court at the bail hearing of Julian Assange in December 2010, a consultation is underway into the issue.
A High Court injunction has already been served via Twitter and on 4 February 2011, the Supreme Court gave the green light on tweeting.
Critics of in court tweets cite inaccurate reporting of proceedings, the ability of jurors to encounter prejudicial material online and the ability of witnesses to find out what has been said before they are called.
However, the electronic age is very much here. Perhaps Twitter will enhance public interest in legal proceedings and bring the process of justice further into the open.
The deadline for submissions for the consultation is 4 May 2011.
Posted by Carolyn Parsons , who specialises in commercial dispute resolution and business recovery and insolvency matters.
Carolyn Parsons
0115 976 6574
cparsons@brownejacobson.com
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Rating: 10.0/10 (4 votes cast)
Tags: Contempt of Court Act 1981, tweets, Twitter
Posted in Commercial dispute resolution | No Comments »
Friday, March 11th, 2011
Lucasfilm’s epic battle with prop designer Andrew Ainsworth continues. Mr Ainsworth built the original plastic stormtrooper helmets back in 1977, working from a two-dimensional design. He then went on to sell both original and replicas of the now iconic stormtrooper helmets to customers.
It is accepted by both parties that the two-dimensional drawings are copyright works. Whether the three-dimensional helmets are protected by copyright depends on whether LucasFilm can convince the Supreme Court that they should be interpreted as “sculptures” under the Copyright and Patents Act 1988.
Whether the helmet is found to be a sculpture is of critical importance to LucasFilm. If it is then it may receive the full term of protection for an artistic work – 70 years from the death of the author.
LucasFilm has failed in both the High Court and the Court of Appeal. Will it be third time lucky? The odds are stacked against them.
The saga continues…
Oliver Laing
0115 908 4854
olaing@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: Andrew Ainsworth, copyright, Copyright and Patents Act, Lucasfilm
Posted in Intellectual Property | No Comments »
Friday, March 11th, 2011
The High Court recently ruled that a series of advertisements were misleading and infringed the Claimant’s trade marks.
The Defendant, Rockwool, manufactures insulation panels used in construction. They carried out an advertising campaign, comparing their product with that of their competitor, Kingspan, using fire tests to demonstrate the combustibility of the goods. Kingspan argued that the claims made about their product were false and misleading.
Kitchen J held that Rockwool infringed Kingspan’s trademarks under Article 5(1)(a) and (2) of the Trade Mark Directive and Article 9(1)(a) and (c) of the CTM Regulation, by taking unfair advantage of their trade mark and discrediting it, and that , Rockwool had not met the condition, under the Comparative Advertising Directive, of objectively comparing the products. Another claim for malicious falsehood was dismissed.
The decision should serve as a warning to businesses to take greater caution in ruthless advertising campaigns involving competitor’s products!
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: 9.7/10 (3 votes cast)
Tags: advertising, Kingspan, Rockwool, trade marks
Posted in Advertising & Marketing, Intellectual Property | No Comments »
Friday, March 11th, 2011
Lord Hutton has published 27 recommendations in his new report on public sector pensions. This follows his interim report in October 2010 which concluded that public service pension schemes were too expensive and unsustainable. The proposed changes are intended to simplify the schemes, be fairer to those on low and moderate earnings, and address socio-economic changes.
Hutton advises that final salary public sector pensions should be phased out by 2015 and replaced by a new career average scheme to make the cost of providing those pensions more affordable. He also proposes increasing the normal retirement age for public sector schemes to 65, rising eventually to 68, in line with proposed reforms to state pension age, and building ‘automatic stabilisers’ into new schemes so members either increase their contributions, or take a smaller pension.
There have been warnings that if the proposals are implemented, the lowest paid civil servants will drop out of public sector pension schemes and there will be wide-spread industrial action. It is uncertain at present whether Hutton’s proposals will be adopted by the government; what is certain is that many people will be keeping a close, critical eye on what happens next.
Posted by Victoria Leybourn, who specialises in advising companies and trustees in all aspects of pensions law and local authorities and contractors on their obligations regarding public sector pension schemes.
Victoria Leybourn
0115 976 6160
vleybourn@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: Lord Hutton, pension report, public sector pensions
Posted in Employment, Pensions | No Comments »
Friday, March 11th, 2011
The Department of Health recently issued a FAQ fact sheet relating to the future ownership and management of premises by aspirant Community Foundation Trusts (CFT).
The fact sheet gave some helpful advice on what may be considered the burning questions for both PCTs and CFTs in this transition process. However, whilst the fact sheet did answer some of the questions being raised, we still await guidance on how the hand back and claw back provisions proposed to apply to CFTs at the end of a Community Services Contract will operate. With 1st April fast approaching it seems there are many PCTs and aspirant CFTs who are concerned that there is still no further guidance available or standard drafting to give clarity to the position.
One particular question which may need some thought is where the property owned by the CFT is leasehold, what measures will be put in place to tackle potential objections of landlord to the assignment of the lease to another party at the end of the Community Services Contract.
Posted by Mick Suggett, who specialises in commercial freehold and leasehold property within the public health and local authority sectors; preparation of reports on title for lenders and public bodies.
Mick suggett
0115 908 4885
msuggett@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: community foundation trusts, department of health, health, health law, management of premises, property, property law
Posted in Health, Property | No Comments »
Friday, March 11th, 2011
The Advertising Standards Authority (ASA) has banned a Walkers crisps promotion which offered entrants a chance to win £10 if they could correctly predict where and when in the country it would rain.
The promotion initially allowed entrants to enter up to twice a day, however one person complained when they had purchased enough packets of crisps to enter twice a day but were later informed that entries had been reduced to just one per day.
Though Walkers had contacted all customers who had registered an account in the launch phase by email about the change in terms and conditions, the ASA said the promotion had not been administered fairly. Over 40,000 people had entered before the T&C’s were changed who would expect to be able to purchase and bank promotional codes in accordance with the original T&C’s.
Advertisers should take note that the ASA will not be sympathetic to changes in T&C’s once promotions have been launched. Advertisers need to take advice to make sure promotions are fully compliant with the Advertising Codes before running them.
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 (2 votes cast)
Tags: advertising codes, advertising standards authority, ASA, Wallkers crisps
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Friday, March 11th, 2011
Lord Phillips handed down a detailed judgement in the cases of two women who died from mesothelioma following low level exposure to asbestos.
Whilst the headlines rightly concentrate on the flood of low exposure claims which will undoubtedly follow, I was struck by the Supreme Court taking the time to set out in very clear terms a step-by-step approach to the case law behind Fairchild and, why in light of the lack of certainty in scientific knowledge, the Fairchild exception is necessary in mesothelioma claims.
If the 84 page judgement causes you to baulk – at least read the detail of Lord Phillips judgement. I wonder if the Supreme Court wanted to use the opportunity to provide clarity in a complex area of the law following their poorly received judgement in the series of cases known as the trigger litigation.
Posted by Bridget Tatham, specialising in: high value complex litigation relating to disease and stress and bullying at work; experienced in regulatory matters including advocacy, investigations and inquests.
Bridget Tatham
0121 237 3916
btatham@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: asbestos claims, Claims, elpl, exposure to asbestos, insurance claims, local authority claims, mesothelioma
Posted in Employers & Public Liability, Insurance | No Comments »
Thursday, March 10th, 2011
South Wales Police have this week advised that they are dealing with the largest number of cases of forced marriage and honour based-violence they have ever seen. In the last year the force has dealt with 49 cases. The figures have been released to coincide with International Women’s Day and to keep the spotlight on the important issue of forced marriages.
In response what was considered to be a growing problem, the Government issued guidance and guidelines on forced marriages back in November 2008. These helpful tools provide advice regarding the possible warning signs or indicators that victims of forced marriages may display and the necessary steps that should be taken to ensure the safety and protection of individuals and their children.
In the two years since the guidance and guidelines became available, the problem has shown no sign of letting up. If the South Wales Police figures are indicative of the national position and the future trend, local authorities and schools are likely to find identifying and dealing with the risk of forced marriage a continuing problem.
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: arranged marriages, forced marriages, International Woman's Day
Posted in Education, Social Care | No Comments »
Thursday, March 3rd, 2011
This week thousands of parents found out whether or not their child had been admitted to the secondary school of their choice. There were reports of as many as eleven applications per place in some of the country’s most popular state secondary schools. Competition for places is getting fiercer, blamed on rising birth rates, immigration and a shift from private schools to the state sector as the recession bites.
Schools Minister Nick Gibbs has said that the government’s academies and free schools programme, proposed reforms on discipline and curriculum changes should give parents a “more genuine choice of a good school”.
The Government is also planning to shorten the Admissions Code, prompting criticism that the rules may become so simplified that the Code becomes meaningless. With some commentators arguing that the only way to inject some fairness into the system is to award school places on a ‘lottery’ basis and others adamant that admissions based on catchment area should remain, there is unlikely to be any consensus on the correct approach any time soon.
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: academies, free schools, school admission
Posted in Education | No Comments »
Thursday, March 3rd, 2011
The Government’s consultation on the move from RPI to CPI as the basis for increasing pension benefits in private sector pension schemes closed yesterday, 2 March 2011. It will be interesting to see the outcome of this consultation, especially in light of the Government’s rethink on the impact of the switch from RPI to CPI as set out in the revised impact assessment. The impact of the switch from RPI to CPI on the benefits paid out from private sector pension schemes is greater than the Government initially envisaged.
In the meantime, as a result of the change in the statutory order from RPI to CPI index linking, pension scheme rules in relation to pension increases and revaluation of deferred members’ benefits should be carefully checked to determine whether these are increased in line with CPI or RPI.
Posted by Victoria Leybourn, who specialises in advising companies and trustees in all aspects of pensions law and local authorities and contractors on their obligations regarding public sector pension schemes.
Victoria Leybourn
0115 976 6160
vleybourn@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: Pensions, private sector pensions, RPI to CPI
Posted in Employment, Pensions | No Comments »
Wednesday, March 2nd, 2011
National media interest has focused on Eunice and Owen Johns, a couple of Christian faith with 20 years for foster carer experience behind them. When Derby City Council told them that it would have difficulty approving their application to become approved foster carers because of their faith-based belief that homosexuality is unacceptable, they sued for discrimination on religious grounds. On Monday the Court of Appeal ruled against them.
The technical legal justifications of the judges to support this decision hold water, and organisations such as Stonewall have applauded the ruling saying that there should be no place in fostering for people who hold such views. But mainstream religions such as Roman Catholicism and Islam disapprove of homosexuality, and yet it would be outrageous for anyone to claim that all observing Catholics and Muslims should be excluded from fostering. Indeed the shortage of foster carers is often most acute within minority groups. Usually authorities operate a “don’t ask, don’t tell” policy. In truth this is a fudge, but is there a better way?
Dave Drew
0115 976 6226
ddrew@brownejacobson.com
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Rating: 7.0/10 (2 votes cast)
Tags: Christain faith, fostercare, religion
Posted in Social Care | No Comments »
Tuesday, March 1st, 2011
I was always taught, that a company using intellectual property must necessarily either:
A) Own it; B) Be licensing it (from a third party); or C) Be infringing (a third party’s rights)
A case in the Patents County Court last month however has looked at the question – “if you are using copyright material under licence, but fail to pay the ongoing licence fee – are you therefore infringing the owner’s rights?” The answer was no – it is not necessarily an infringement. Even though you are in breach of the licence, so may be in breach of contract, it does not necessarily follow that you are infringing copyright, or that the licensor has a right to terminate the licence.
From a pure contract law perspective, this isn’t that surprising but is a reminder that if you don’t put express wording in a contract, the courts will not imply it for you (so it is worth getting the wording in at the start).
When and how contracts can be terminated for breach is an issue we’ll be covering at the next in house lawyers forums on 16th, 29th and 31st March. Please sign up here if you’d be interested in attending.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: copyright, Intellectual Property, IT Contracts
Posted in In-house Lawyers, Intellectual Property, IT Contracts | No Comments »
