Archive for April, 2011
Thursday, April 28th, 2011
A taxpayer business has recently won a decision against HMRC in the First Tier Tax Tribunal over an SDLT saving scheme which was put in place on a property transaction with a purchase price of about £65million. The saving relied on a combination of two SDLT reliefs, for sub-sales and for connected party transfers into partnerships.
It’s been very rare for HMRC to take SDLT cases to the courts since the introduction of SDLT in 2003, and this defeat for them may give them cause for thought over possible future court action, despite a concern amongst tax advisers that HMRC are looking strongly into challenging SDLT saving schemes.
The particular scheme used in this case may not be workable now, given that SDLT anti-avoidance legislation has been introduced since the transaction in question took place. What will be really interesting is if HMRC dare go to court in future on the grounds of that anti-avoidance legislation, so we can see if the courts will back it up.
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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Tags: first tier tax tribunal, hmrc, SDLT, sdlt saving scheme, stamp duty land tax, Tax
Posted in Tax | No Comments »
Thursday, April 28th, 2011
Do you need to tell the (potential) buyer about the future threat to the business? If you want to avoid a claim for misrepresentation you do… or risk unlimited liability.
A case on 20th April this year has confirmed the position at English law that silence (when you know an honest statement is no longer true) can amount to fraudulent misrepresentation.
It’s not the first such case to make this point (as anyone who attends our regular in house lawyers forums will be aware) but it does place the bar higher for sellers of businesses, who must balance the threat to the sale against the (very real) threat of a claim, in respect of which they will not be able to limit liability.
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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Tags: fraudulent misrepresentation, misrepresentation claim, richard nicholas, selling a business, unlimited liability
Posted in Commercial contracts, In-house Lawyers, Outsourcing | No Comments »
Thursday, April 28th, 2011
It’s always useful, when advising on issues such as cloud computing, to hear the views of CIOs, so I was delighted to be invited by Post Magazine to be part of a round table discussion on the subject – looking at cloud computing in the insurance sector.
To me, the benefits of cloud computing make a switch nearly inevitable, although there are some significant and justifiable fears about both data security and availability – particularly in the light of recent events, making the choice of a private cloud the more palatable option for critical business functions.
There are practical restraints on use of cloud computing in the insurance sector but the consensus was that these could be overcome. Indeed, several of those present were actively looking at a switch to cloud computing in the near future.
With the right contractual assurances and safeguards in place it seems cloud computing is coming – even to the (traditionally risk-averse) insurance sector.
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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Tags: cloud computing, Data Protection, data security, insurance cio, insurance sector, IT Contracts, post magazine, richard nicholas
Posted in Commercial contracts, Data Protection, In-house Lawyers, Insurance, Insurance - Advisory, IT Contracts, Outsourcing | No Comments »
Thursday, April 28th, 2011
We have reported that the ASA, with effect from March 2011, would be extending its remit to regulate marketing communications made online. This now includes statements made on marketer’s own websites.
The first such adjudication was published yesterday. The ASA has held that a claim made on the Maperton Trust’s website – that its product repelled head lice – should not be made, since the Maperton Trust did not produce the necessary evidence to support that claim.
We have already had queries from businesses concerned about this extension. Our view is that this first decision reinforces the fundamental principle that a marketer should always be able to objectively substantiate every claim before it is made. What this decision does not address are any of the particular issues arising from online marketing, such as user-generated content, and the enforcement of codes on the use of social media. However we are confident that decisions touching on these issues will not be too far away - and we will keep you posted.
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 standards authority, ASA, maperton trust, marketing communications, online marcoms ruling, online marketing, online marketing regulation
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Thursday, April 21st, 2011
The Church of England has announced that they intend to reserve no more than 10% of places for followers of its faith. The announcement comes ahead of the CofE’s publication of guidelines on admissions this summer and represents a huge development in church policy that could have a significant impact on CofE school admissions.
10% is a much lower proportion than the maximum reserve of 50% for new free schools with religious character. The guidance is intended to put pressure on faith schools to change their admissions rules. However, voluntary aided faith schools are their own admissions authority and there may be pressure from parents and other members of the church to maintain the status quo, thereby diluting the impact of the guidelines.
The Rt Revd John Pritchard believes that the Church of England’s admission policy should be changed regardless of whether the overall effect would be to reduce school results – the aim being to serve the community as whole.
Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com
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Tags: Church of England, faith schools, free schools, school admissions, schools
Posted in Education | No Comments »
Wednesday, April 20th, 2011
Another privacy super-injunction has been granted by the Court of Appeal, this time in respect of story concerning a married man within the entertainment industry (known as ‘ETK’), who had an affair with a married female colleague (known as ‘X’).
The Court of Appeal, overturning the High Court decision, found that it had erred when carrying out the “ultimate balancing test” between the right to privacy and freedom of expression. The lower court had not sufficiently taken into account the rights of X or ETK’s wife and importantly ETK’s teenage children.
This decision will anger the press, but it is clear that where children’s rights are at stake, courts will be quicker to gag the publisher. Of course, celebrities will now drag their children into the equation at every opportunity – it does seem harsh that they will now use their children’s distress at what they have done, as a means to obtaining their injunctions.
Posted by Mark Daniels, 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.
Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com
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Tags: celebrities, Court of Appeal, defamation, freedom of expression, privacy, right to privacy
Posted in Intellectual Property | No Comments »
Wednesday, April 20th, 2011
Once again MediaCAT and its representative ACS: Law (acting by its only partner Mr Crossley) have been dragged before the courts, this time to answer a claim for the Defendants costs in dealing with the allegations. As reported previously, this case related to ACS: Law’s questionable conduct in pursuing internet users who it alleged had been involved in the illegal online sharing of pornographic films.
Judge Birss QC ordered that MediaCAT (who did not attend the hearing) pay the Defendant’s costs in the matter and made a ‘stage one wasted costs’ order against ACS: Law. This is a punitive order made against a party’s legal representative where the representative has acted ‘improperly, unreasonably or negligently’. Judge Birss was highly critical of Mr Crossley’s actions through ACS: Law, criticising his “improper and champterous” documents and “plainly negligent” drafting. ACS: Law now has an opportunity to answer these findings.
Clearly the Judge was not happy with ACS: Law and MediaCAT’s blanket approach of demanding cash settlements from suspected file sharers, demonstrating that a more responsible approach should be taken when dealing with such suspected infringements.
Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com
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Tags: ACS: Law, illegal online sharing, Judge Birss QC, MediaCAT
Posted in Intellectual Property | No Comments »
Tuesday, April 19th, 2011
Whether it’s an angry ex-colleague, ex-employee or ex-director – if your business has valuable confidential information that it needs to protect, these people will inevitably know about it.
When that person leaves – how do you stop them from disclosing information about your product or company to other suppliers?
We looked at practical legal steps (restrictive covenants, contractual provisions) and technical/IT steps that you can use to prevent the loss of IP, data and know-how in a recent workshop and picked up some useful industry perspectives from those who attended.
If all else fails then the court will intervene, occasionally with a fairly stringent perpetual injunction, prohibiting that person from (ever!) disclosing that information, as in a recent case involving a golf trolley device .
To get such a prescriptive remedy however you’ll need to act fast, demonstrate a real threat and that other remedies will not suffice. Getting the right IP and contractual protection in place before you reach a dispute can significantly improve your chances.
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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Tags: Commercial contracts, confidential infomation, ip
Posted in Commercial contracts, In-house Lawyers, Intellectual Property, IT Contracts, Outsourcing | No Comments »
Tuesday, April 19th, 2011
The UK government is considering reforming the use of ‘best-before’ dates. Currently the law requires all pre-packed food products to display a ‘best-before’ date, however this could change as the government attempts to cut food waste.
The argument goes that consumers rely too much on these labels (which are not an indication that food will be harmful – unlike ‘use-by’ dates). Confusion between labels causes consumers to throw away food that is safe to eat. If the labelling regime changes, consumers would be encouraged to rely on their own common sense to determine if food is fresh.
However ‘best-before’ dates serve an important purpose for manufacturers and retailers. They are an indication to consumers as to when a product is at its best, and can protect against complaints of products being of an unsatisfactory quality. Their use may therefore continue even if a legal obligation no longer exists. Perhaps the government should instead concentrate its efforts on educating the population in matters of food safety.
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: best before dates, food and drink, food labellig, food retailers
Posted in Advertising & Marketing, Brands, Food & drink, Manufacturing, Retail | No Comments »
Monday, April 18th, 2011
Employers can now lawfully treat one person more favourably than another when in connection with recruitment or promotion because they have a protected characteristic (although they are not obliged to).
This is, however, subject to a number of limitations and employers can only do so if the candidates are of equal merit. Employers will therefore have to ensure their rating criteria are capable of demonstrating this.
The employer is also required to ‘reasonably think’ that those with a protected characteristic are under-represented in the workforce or suffer a disadvantage connected to that characteristic. This must be supported by evidence.
The employer can only legally discriminate if to do so is a proportionate way of achieving the above aims.
Failure to demonstrate any of the above could lead to a claim for discrimination against the employer, which means, with so many uncertainties and only limited advantages, there is little business case for using the new powers.
Ben Standing
0115 976 6528
bstanding@brownejacobson.com
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Tags: discrimination, promotion, protected characteristic, recruitment
Posted in Employment | No Comments »
Friday, April 15th, 2011
This week has seen the Government launch two consultations. The main consultation focuses on developing a new funding framework for schools, with the supplemental consultation focusing on Academy funding for the academic year 2012/13. The consultations are running alongside each other and close on 25 May 2011. The Government proposes to consult on more detailed plans later this year.
The current system means that there are massive regional variations on the funding schools receive per pupil. The Government seeks to introduce a funding system which distributes the £35 billion budget fairly among pupils and which is not dependent on where they live.
The Academy funding consultation invites views on three proposed funding options in an attempt to reform the current system which the government believes lacks transparency, is prone to error and is administratively inefficient.
As with any redistribution of wealth, there will be winners and losers and we will await with interest the more detailed proposals later this year.
Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com
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Tags: academies, consultations, government, school funding
Posted in Education | No Comments »
Friday, April 15th, 2011
More than 600 schools are now academies (compared to 203 in May 2010), with nearly 500 waiting to convert having already applied to the Department for Education. Nearly 550 secondary schools are now academies, representing 16.5% of secondary schools.
Until now, conversion was open only to schools judged by Ofsted to be Outstanding or Good with Outstanding Features (which have been able to convert in their own right) and other schools if applying as part of wider chains, supported by strong schools.
However, in response to demand from other mainstream and special schools wishing to become stand-alone academies, the Government will now consider applications from any school that can make a compelling case for converting to academy status. Criteria include exam performance over the last three years, and comparison with local and national exam performance.
It is clear that academy status is so far very popular amongst schools, which, it would appear, consider the greater freedoms promised by the Government to be a great incentive.
Posted by Chris Emm, who specialises in commercial property work primarily acting for local authorities and also deals with development and commercial freehold and leasehold matters.
Chris Emm
0115 908 4112
cemm@brownejacobson.com
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Tags: academies, government, Ofsted, schools
Posted in Education, Property, Public Sector | No Comments »
Friday, April 15th, 2011
… or at least, they don’t do everything you might want them to.
A recent Court of Appeal decision took a similar line to the first instance ruling in BSkyB v EDS in reaching the conclusion that an entire agreement clause that said that the agreement constituted:
“the entire agreement between the parties” and would “supersede any previous promises, agreements, representations, undertakings or implications” made prior to the contract was not enough to exclude liability for misrepresentations made outside the contract terms, although it will prevent collateral warranties arising.
If you want to exclude liability for misrepresentation (as those who attend our regular in-house lawyers forums will be all too aware) you need to have either an explicit exclusion of liability for misrepresentation or, better still a statement that neither party has relied upon statements not included in the contract.
Suppliers who want to exclude comments made by salespeople in negotiations need to check their contracts. For those seeking to bring a claim for misrepresentation this judgement, like BSkyB v EDS, breaks down an important obstacle to bringing a claim.
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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Tags: BSkyB v EDS, Commercial contracts, entire agreement clauses, misrepresentations
Posted in Commercial contracts, In-house Lawyers, IT Contracts, Outsourcing | No Comments »
Tuesday, April 12th, 2011
Guidance by the Crown Prosecution Service recently released on the CPS website has now recognised that when police officers and firefighters perform a heroic act, the public interest may not be served by taking forward a prosecution.
The notes outline that police officers and firefighters may breach the Health and Safety at Work Act 1974 – s.7 – by failing to take reasonable care of their own safety, however in such circumstances (and where the safety of others is not put at risk) a prosecution is now not likely to follow.
The decision will still be taken by the Senior Prosecutor in charge of the case and will be assessed on a case by case basis, but should demonstrate that heroic acts by those working for the public should be recognised and acknowledged by the CPS rather than prosecuted.
Posted by Elaine Heaney, who specialises in health & safety/criminal law ; provides advice and representation from investigation through to court proceedings in both the Magistrates and Crown Court.
Elaine Heaney
0115 976 6090
eheaney@brownejacobson.com
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Tags: CPS, firefighters, Health and Safety at Work act 1974, police officers
Posted in Health & Safety, Regulatory | No Comments »
Tuesday, April 12th, 2011
Under the Equality Act 2010 (schedule 7 para 2 ) women on maternity leave can be given ‘special treatment … in connection with pregnancy or childbirth’. This would not amount to sex discrimination against men.
So in a redundancy selection process which involved assessing performance at a specified date, you might think giving a woman on maternity leave the maximum score while scoring the man on his actual performance would not be sex discrimination. Is that not just giving the woman on maternity leave ‘special treatment’, which the law allows?
Not according to the EAT. The special treatment must be proportionate. In this case, the woman scored higher than the man because she was on maternity leave. There were fairer ways of avoiding disadvantage to women on maternity leave, such as assessing performance as at the last date they both worked.
The moral may be that employers who imagine that risk of pregnancy/maternity discrimination claims gets less the better they treat those on maternity leave are just leaping from one frying pan into another!
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Tags: EAT, equality act 2010, maternity leave, redundancy, sex discrimination
Posted in Employment | No Comments »
Monday, April 11th, 2011
Jane Austin’s famous phrase “a truth universally acknowledged” was adopted by Mr Justice Floyd recently to summarise an understanding of what amounts to common general knowledge and to distinguish that knowledge from something which is obvious. There was then an interesting discussion on the approach of the expert and the difference between common general knowledge and further information which the skilled person will seek before he embarks on the problem to which the patent provides a solution. He concluded that a step by step analysis, performed after the event, may not in fact prove to be unrealistic or driven by hindsight. The mere fact that further steps can be characterised as being performed in order to make an informed decision cannot prevent those steps from contributing to a finding of inventiveness.
Probably the best evidence of common general knowledge is found in standard text books rather than in the studies of highly learned and expensive experts.
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 (2 votes cast)
Tags: common general knowledge, Mr Justice Floyd, Patents
Posted in Intellectual Property | No Comments »
Friday, April 8th, 2011
Retail is the first sector under review in the government’s “Red Tape Challenge”. The objective of the initiative is to reduce the myriad of regulations which have, according to the government, hampered businesses and damaged the economy. The Government has launched a consultation that runs until 5 May 2011 asking the public whether existing regulations relating to the retail sector should stay or be scrapped. The retail based regulations have been divided up into different topics: consumer information and protection; dangerous and restricted goods; hallmarking; premises and trading requirements; selling vehicles, parts and fuel; Sunday trading; trading with the enemy; and weights and measures. Following the review, Ministers will have 3 months to decide which regulations they will scrap.
This appears to be a genuine opportunity for the retail sector to have its say and help determine how the industry is regulated in the future. For the initiative to work, it’s vital that those within this sector fully participate in the process.
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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Tags: ecomomy, red take challenge, retail sector
Posted in Retail | 1 Comment »
Friday, April 8th, 2011
Welsh scientists are embarking on a project whereby they aim to ‘barcode’ every one of the 1,143 native plants, helping scientists track the status of pollinating insects, such as bees.
The bank of information can also be compared to other stored information from similar undertakings around the world, held in the Barcode of Life Database, BOLD. The hope is that this will assist in identifying patterns in DNA, showing how species are related to each other, where they have come from and who they’re reproducing with.
Further, this information can be used for more commercial purposes such as authenticating Welsh products or assisting in criminal cases where plant fragments are found as part of forensic examinations.
The findings are due this summer and will be used as part of establishing a tailored conservation programme for Welsh plants. With the plan to extend the project to the rest of the UK, it won’t be long before all our native species are catalogued for posterity and modern day use.
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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Tags: barcode of life database, BOLD, Welsh floral heritage
Posted in Waste & Environmental | No Comments »
Friday, April 8th, 2011
So, 6th April has been and gone, and another tax year has begun. You will have seen numerous recent announcements in the press about proposed changes to tax rules/rates but many of them have now actually come into force. How are you affected? Can you actually tell?!
On the one hand, the amount of tax-free income you can earn has gone up, the annual capital gains allowance has increased, the entrepreneurs’ relief limit has doubled and you can invest more in your ISA. On the other hand, the higher rate income tax threshold has been reduced, NICs have increased, SDLT is now 5% on £1m+ residential property, the IHT threshold has been frozen and pension tax relief has been restricted, and that’s to name but a few of the changes. Some people will win out overall, but I fear that there will be many more that end up worse off instead.
Happy New Year!
Posted by Beth Dowson, who specialises in taxation aspects of a wide range of property, corporate and commercial matters; provides taxation support to other internal departments.
Beth Dowson
0115 976 6186
bdowson@brownejacobson.com
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Tags: IHT, income tax, ISA, SDLT, Tax
Posted in Employment, Tax | No Comments »
Friday, April 8th, 2011
This week a court sentenced a teacher to six years in prison for having underage sex with two of his pupils and sex with a 16 year old pupil. As well as the straightforward convictions for underage sex, he was convicted of sexual activity with a child by a person in a position of trust.
This relatively new offence is set out in the Sexual Offences Act 2003 but only applies in very limited circumstances. Whilst a teacher sleeping with a pupil is clearly caught, the same is not true in sport – there is no offence committed where a sports coach engages in consensual sexual activity with a 16 year old that he or she coaches.
Considering the strong and mutually important relationships that can form between a coach and the individual and the risk of abuse that could exist, it is disappointing that the legislation does not offer those in sport the same protection. This is a change for which the Child Protection in Sport Unit (a joint venture between Sport England and the NSPCC) have been campaigning for some time, and deserves our support.
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 (2 votes cast)
Tags: Child Protection in Sport Unit, NSPCC, Sexual Offences Act 2003, Social Care, Sport England
Posted in Social Care | No Comments »
![funding framework for schools](<img class="alignnone size-full wp-image-1206" title="talk_to_us2" src="http://www.law-less-ordinary.co.uk/wordpress/wp-content/uploads/2010/07/talk_to_us2.jpg" alt="" width="106" height="18" /><img style="float: left; border: 1px solid #999999; border-right: 2px solid #999999; border-bottom: 2px solid #999999; padding: 2px 2px 10px;" src="http://www.brownejacobson.com/images/hannah_bramhall_new_web.jpg" alt="Hannah Bramhall" width="55" height="55" /><p style="float: left; width: 300px; margin-left: 8px; margin-top: 0px;">Hannah Bramhall0121 237 4563<a title="email Hannah Bramhall" href="mailto:hbramhall@brownejacobson.com">hbramhall@brownejacobson.com</a></p>){kind=link}