Archive for May, 2011
Tuesday, May 31st, 2011
The uncertainty over the validity of Part 36 offers expressed to be “open for 21 days” ended with Friday’s Court of Appeal judgment in C v D [2011] EWCA Civ 646 which confirmed that Part 36 offers cannot be time-limited.
The Part 36 offer in that case was however saved from failing by the court construing “open for 21 days” as meaning it would not be withdrawn within 21 days, without the permission of the court.
In the light of this decision, Part 36 offers which are presented as a Part 36 offer and which otherwise comply with its form will not readily be interpreted by the courts in a way which will prevent them from being valid Part 36 offers.
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: 9.0/10 (9 votes cast)
Tags: C v D, CPR, insurance, Part 36, steven conway
Posted in Insurance, Litigation | No Comments »
Tuesday, May 31st, 2011
The Financial Ombudsman Service’s maximum binding award will be increased to £150,000 from the current limit of £100,000.
The change will come into force on 1 January 2012 and will only apply to complaints referred to FOS on or after 1 January 2012.
How a decision – which will soon mean a binding award of up to £150,000 – can be said to be “fair and reasonable” when a court of law could not reach the same outcome remains a sore point for those in the firing line.
And that is before one considers that, in so far as time limits are concerned, there is no 15 year long-stop date, in the same way that non-regulated firms are protected from stale claims by the Limitation Act 1980.
Other pressures abound – for example, the likely increase in professional indemnity insurance premiums and the drain on capital caused by the ever increasing FSCS levies.
Whilst giving consumers confidence in dealing with an FSA regulated firm is laudable, it is very easy to see why many IFA and broker businesses are under severe pressure.
We are likely to see more attempts to judicially review its decisions. It will be interesting to see if the courts will be able to find a way through the FOS’s very wide statutory authority.
Posted by Jonathan Newbold, who specialises in professional negligence, financial services and commercial dispute resolution; advises insurers on policy wording and coverage matters.
Jonathan Newbold
0115 976 6581
jnewbold@brownejacobson.com
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Tags: Financial Ombudsman Service, FSA, IFA, Limitation Act 1980, professional indemnity
Posted in Insurance, Professional Indemnity | No Comments »
Friday, May 27th, 2011
The Department for Education has today published its new proposed changes to the admissions code and appeals code. The changes would see a much slimmed down version of the codes making the admissions process simpler, fairer and more transparent for parents.
Local authorities will no longer be allowed to use lotteries in order to place children in schools, yet other admissions authorities will be allowed to continue the practice. The proposals also intend to make it easier for popular good schools to take more pupils and plans to end the 30 pupil limit on class sizes in some cases.
Interestingly, the proposals give academies and free schools the right to prioritise places for those children from more disadvantaged backgrounds whose family income is under £16,190. This is undoubtedly an incentive for schools to convert as following the introduction of the pupil premium they are likely to gain financially in comparison to their maintained peers.
The consultation on the proposals is set to close on 19 August 2011.
Posted by Katie Michelon, who specialises in education law advice to schools, colleges and LEAs, including commercial advice on education sector projects such as academies, trust schools and federations.
Katie Michelon
0115 976 6189
kmichelon@brownejacobson.com
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Tags: academies, admission code, admissions authorities, appeals code, free schools, local authorities, pupil premium, schools
Posted in Education, Local Authorities | No Comments »
Friday, May 27th, 2011
Sharon Shoesmith, the Haringey Children’s Services Director who was sacked in December 2008 after an investigation into the death of baby Peter Connelly found failings in her department, has today in the Court of Appeal won her claim that her sacking was unlawful.
This result will be welcomed by social workers. It highlights the difficult job child protection professionals have. It recognises that in these cases, it is extremely unlikely that one individual can be singled out and blamed, however tempting it may be for politicians in order to placate the media. Making a single individual the scapegoat is both unfair on the individual, and hampers a considered analysis of the issues which do truly arise.
Child protection is multi-agency in nature, usually involving input from schools, health and charitable agencies. The old lazy assumption that any failings must lie at the door of social workers should be consigned to the dustbin of history, and hopefully today’s decision will help to do that.
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: 6.0/10 (2 votes cast)
Tags: baby Peter, child protection, children's services, Sharon Shoesmith, social workers
Posted in Local Authorities, Public Sector, Social Care | No Comments »
Friday, May 27th, 2011
Today Paul Burstow, Care Services Minister, has announced that responsibility for commissioning health services for children and young people in secure Children’s homes and secure training centres is to pass to the NHS. Until now each secure home or centre has commissioned its own health services.
At first glance this makes practical sense. The NHS has had this role for young offender institutions and prisons since 2006. Claims that this will help ensure consistency between each establishment, and continuity of care once the individual leave the secure establishment, seem plausible.
But where precisely within the NHS will this responsibility sit, and for how long? Will it rest with soon-to-be-abolished PCTs or SHAs? Will it then pass to soon-to-be-established GP consortia, or the National Commissioning Board?
There is great uncertainty about the future of health commissioning generally due to the lack of detail in the Health and Social Care Bill, and exacerbated by recent political friction which casts doubt of how much of the bill will survive into law. The practical implementation of today’s announcement will be watched closely for clues as to the future.
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: care services minister, Commissioning, National Commissioning Board, NHS, Paul Burstow, secure home, young offenders insitutions
Posted in Health, NHS, Social Care | No Comments »
Thursday, May 26th, 2011
Lambeth Council has changed its definition of potholes as part of its attempt to save £37 million this year in order to protect key services. The Council used to repair holes 25mm deep but will now only repair those over 40mm deep and will check roads once every six months instead of once every four. It is suggested that this redefinition is likely to be adopted by 75% of councils.
Reducing highway maintenance and inspections regimes to fall in line with the Well Maintained Highways – Code of Practice for Highway Maintenance represents an easy win for Councils looking to save money but the recent Court of Appeal decision in Wilkinson v City of York [2011] EWCA Civ 207 was a shot across the bows for highway authorities seeking to deviate from the standards recommend in the Code, based on budgetary constraints.
While Councils struggle to prioritise their budgets, there is some risk that today’s savings may be tomorrow’s increased claims costs.
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 (7 votes cast)
Tags: budgets, code of practice for highway maintenance, highways, insurance, lambeth council, local authority, potholes, steven conway, well maintained highways
Posted in Insurance, Insurance - Advisory, Procurement | No Comments »
Tuesday, May 24th, 2011
Mr Justice Tugendhat recently held that “the court does not grant injunctions which would be futile”.
But yesterday, Tugendhat refused to remove the anonymity granted to the claimant in CTB v News Group Newspapers even though his identity had been disclosed in parliament.
The judge said that the question that had been asked in parliament about it and the “tens of thousands of people” that named the claimant strengthened the claimant’s claim to need protection, and the order remains in place to protect him from “taunting and other intrusion and harassment in the print media”.
The courts held in the Spycatcher case that confidentiality is destroyed by public dissemination – but the purpose of a privacy injunction is not just to keep a matter secret – it is also there to prevent intrusion and harassment. The decision is courageous and well reasoned – but it must rather grate with businesses that are told that they cannot prevent continued misuse of their confidential information once it has become public.
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: 0.0/10 (0 votes cast)
Tags: CTB v News Group Newspapers, Mr Justice Tugendhat, privacy injunction, spycatcher, superinjunction
Posted in Intellectual Property | No Comments »
Tuesday, May 24th, 2011
Almost two years after the Competition Commission published its final version of the Groceries Supply Code of Practice (GSCOP) it appears that the tiger may finally be getting some teeth. But not yet.
A Bill introducing legislation to establish the GCA (a body to adjudicate on the application of the rules) is imminent – but the cumbersome legislative process still means the GCA will not be in place until 2013.
This matters because GSCOP was actually brought into force in February 2010. The GSCOP is a means of balancing power between suppliers and the 10 largest grocers but with no enforcement authority it inevitably loses impact.
Although, some supermarkets are making a virtue of compliance others are not. Some suppliers are aware of the GSCOP, others are not. Those who comply need to be endorsed and those who do not need to see real benefits from compliance. Until the GCA is established both business and consumers await a GSCOP with bite.
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: competition commission, GCA, groceries supply code of practice, GSCOP, supermarkets, suppliers, unffair levying of costs
Posted in Advertising & Marketing, Brands, Food & drink, Regulatory | No Comments »
Monday, May 23rd, 2011
There has been considerable debate in relation to the most appropriate method of procurement of insurance for local authorities with many adopting different practices.
After the EU Commission opened an infringement procedure against the Netherlands for awarding public contracts for fire insurance by means of the negotiated procedure with publication of a contract notice, the Dutch authorities have now clarified that they consider this practice to be in violation of EU public procurement rules. They will now apply the correct procedures and indicate all the relevant information in the contract award notices in the EU Official Journal. With a similar approach likely to be taken in the UK, those procuring insurance for local authorities in the UK who had previously followed the negotiated procedure should take heed to avoid the risk of challenge.
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 (7 votes cast)
Tags: insurance, insurance advisory, local authority, negotiated procedure, Procurement, steven conway
Posted in Insurance, Insurance - Advisory, Procurement | No Comments »
Monday, May 23rd, 2011
The Coalition government has set out its proposals for a “radical” new system of parental leave from 2015 in its Modern Workplace Consultation. The government plan to replace the current maternity, paternity and parental leave scheme with a system that aims to give parents greater choice and to facilitate shared parenting.
Proposals include preserving the existing paid maternity and paternity leave period but allowing for more flexibility. The proposals suggest that after 18 weeks, maternity leave be reclassified as “parental leave” which either parent can take off. Both parents would be able to take leave at the same time if they wanted to, and/or book it off in blocks.
We expect there will be concerns from employers about the practicalities of dividing leave to be taken up in one or more separate blocks, however, employers would be able to insist that leave should be taken over a continuous period if an agreement cannot be met.
The consultation period ends on 8 August 2011.
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: employment, employment law, maternity leave, modern workplace consultation, paternity leave, shared parental leave, shared parenting
Posted in Employment | No Comments »
Friday, May 20th, 2011
Paul Burstow the Care Services Minister has announced that as part of the governments review on adult social care, Adult Safeguarding Boards (ASB’s) will now be mandatory and will be placed on a statutory footing. ASB’s are made up of key agencies including social services, police, heath and other groups involved in the protection of vulnerable adults.
It is intended that the ASBs will provide vital leadership and improve the level of protection afforded to vulnerable adults in much the same way as Local Safeguarding Children’s Boards do for children. To improve consistency across the country, the government has also laid down the six guiding principles of empowerment, protection, prevention, proportionality, partnership and accountability which should inform local arrangements and govern the actions of the ASB’s.
This measure will help address concerns that the safeguarding of vulnerable adults comes a distant second place when measured against the provision, law, guidance and support aimed at children. Getting ASBs on a statutory footing is a strong step in progressing the vulnerable adult agenda.
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: adult safeguarding boards, care services minister, government, local safeguarding childrens' boards, Paul Burstow, social services
Posted in Health, Social Care | No Comments »
Thursday, May 19th, 2011
The new Privacy and Electronic Communications (EC Directive) (Amendment) Regulations will come into force from 26 May 2011. The regulations cover any information which may be stored on, or accessed from, a user’s computer, but for the sake of brevity such information will be referred to as cookies.
The position prior to the amendment was that websites needed to inform users ofcookies how they used cookies and how users could opt out.
The new position is that websites must obtain the consent of users before storing any cookies which are not strictly necessary to the functioning of the website, or for the sole purpose of transmitting communications. Consent could be gained through the use of pop-ups, splash pages or notices on web pages.
The Information Commissioner’s Office has provided useful guidance here. Initially it seems the ICO will leave it to site operators to decide the best ways to obtain consent, treating operators who can show they have taken steps to comply more leniently than those who cannot.
Posted by Simon White, who specialises in drafting and advising on commercial contracts, advice to public and private sector bodies on data protection and freedom of information.
Simon White
0115 976 6532
swhite@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: communications, cookies, information commissioners office, privacy and electronic communications regulations, websites
Posted in Advertising & Marketing, Data Protection | No Comments »
Thursday, May 19th, 2011
A review of the UK’s intellectual property framework has urged that IP laws should be changed to promote economic growth and adapt to internet-based businesses.
Some key suggestions include:
- establishing a digital copyright exchange, enabling automated licensing
- allowing licensing of ‘orphan’ works (with no identifiable author)
- incorporating into UK law a number of copyright ‘exceptions’ including for, private copying/‘formatshifting’ (e.g. from CD to mp3 player), parody and non-commercial research for all copyright works
- protecting exceptions from being overridden in contracts
- introducing a small claims track in the Patents County Court
In reality, many of the ‘exceptions’ proposed simply reflect what the public expects in the internet age, by removing the confusion caused by rights which it is impossible or impractical to enforce. However, rights holders will be pleased to note that calls for a broader ‘fair use’ defence were rejected.
Laura Phillips
0115 976 6182
lphillips@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: copyright, digital copyright exchange, intellectual property framework, patents county court
Posted in Intellectual Property | No Comments »
Wednesday, May 18th, 2011
Professor Munro has published her final report, reviewing child protection. She recommends, amongst other things, that local areas should have freedom to design their own services and that those working in child protection be given more scope to exercise professional judgment.
She has cautioned against cherry picking parts of her report. We deal with an increasing number of professional negligence claims against children’s services departments. One of the criticisms we often see is an assertion that social workers failed to meet timescales fixed in statutory guidance and policy. One of Professor Munro’s recommendations is that local services should be liberated from nationally prescribed ways of working, and should be free to re-design services.
If these reforms are implemented, it will be interesting to see how practice is benchmarked in future claims against social workers.
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: child protection, Munro report, professional negligence claims, Professor Munron, social workers
Posted in Social Care | No Comments »
Monday, May 16th, 2011
The Advocate General (AG) has advised the ECJ to dismiss Pepsico’s appeal against an invalidity ruling concerning a design for promotional discs known as “pogs”.
Pepsico’s design was challenged on the basis that it did not have individual character having regard to an earlier CRD. A design has individual character if it creates a different overall impression on the informed user than designs which were available to the public before the filing date of the design. When assessing individual character, the degree of freedom of the designer in developing the design is considered.
The AG recommended dismissing the appeal on the grounds that assessing individual character and design freedom are questions of fact, which can only be re-considered by the ECJ in the case of distortion.
Because “overall impression” can only be subjectively assessed, and cases will almost always turn on their facts, litigants are likely to find it extremely difficult to appeal cases to the ECJ.
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: 0.0/10 (0 votes cast)
Tags: advocate general, ECJ, indvidual character, Pepsico, pogs
Posted in Intellectual Property | No Comments »
Friday, May 13th, 2011
Yesterday the Government published its response to professor Wolf’s report on vocational education. The Government has endorsed all of Professor Wolf’s recommendations and has committed to ensuring that every student studies only the best vocational qualifications to ensure that they can progress into either higher education or employment.
The Government have also pledged its commitment to the creation of further University Technical Colleges (“UTC”), something which has been welcomed by Lord Baker who has been the champion of growth in this area for some time.
UTCs are unique in that they offer full-time technically-orientated courses for 14-19 year olds. They are designed to provide opportunities for young people to integrate academic study with practical learning, studying core GCSEs alongside technical qualifications. UTCs are therefore now clearly viewed by the Government as the vehicle through which vocational education can deliver clear progression into higher education or further learning in work.
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 (1 vote cast)
Tags: government, Lord Baker, professor Wolf, University technical colleges, vocational training, Wolf report
Posted in Education, Employment | No Comments »
Friday, May 13th, 2011
In a beautifully ironic twist, the secret confidentiality agreement imposed by Wikileaks (described as being “at the forefront of anti-censorship” on its own website) on its employees has been leaked to the press.
The confidentiality agreement states that any significant breach of its terms will result in a loss to Wikileaks of £12,000,000, which it would then attempt to recover from whichever employee dared to leak information to the outside world. Luckily for the employees, it seems unlikely that this monumental figure is a genuine and reasonable pre-estimate of loss, meaning that the courts would be very unlikely to allow Wikileaks to claim such a sum.
The agreement also gives examples of how such loss may be caused to Wikileaks, the first listed being “loss of opportunity to sell the information to other news broadcasters and publishers”. It seems unlikely that the sources who risk their livelihoods to provide information to the public would be happy for it to be commercialised in this way.
Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com
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Rating: 10.0/10 (3 votes cast)
Tags: anti-censorship, confidentiality agreement, employment, Wikileaks
Posted in Employment, Intellectual Property | 1 Comment »
Thursday, May 12th, 2011
From Max Mosley to Andrew Marr, debate rages about the extent to which famous people should be able to use court orders to prevent their dirty laundry being aired in public.
Now there are reports that a well-known celebrity chef has obtained a gagging order to prevent details of employment tribunal proceedings against him by two former employees being published in the press.
A ‘restricted reporting order’ (as employment tribunals like to call them) can be applied for by either party in a case involving allegations of sexual misconduct, or by the claimant in a disability discrimination case, and prevents the parties to proceedings being named in the press. Unlike the so called “super injunction”, restricted reporting orders are not normally controversial, as they cease to have effect once the case has been determined by the Employment Tribunal. So for those who do not watch celebrity chef programmes and so do not already know how they behave, the full story could still be published once judgment is given.
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
020 7337 1033
tmclaughlin@brownejacobson.com
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Rating: 10.0/10 (3 votes cast)
Tags: Andrew Marr, celebrity chef, employment tribunal, Max Mosley, sexual misconduct, super injunction
Posted in Employment | No Comments »
Wednesday, May 11th, 2011
Unlike other jurisdictions, courts in the UK have not normally made a distinction between gross negligence and negligence of any other kind (para 54).
In a recent case however where a set of terms and conditions excluded liability for negligence “other than gross negligence or wilful default”, the court held that a distinction does exist and that an (otherwise negligent) failure to exercise proper skill and care might not amount to gross negligence unless there was also (for example) an “indifference to an obvious risk”.
It’s a distinction that may well be seized upon by those drafting contracts for suppliers – being grossly negligent suggests a greater lack of care than mere negligence, and a greater hurdle to be overcome in the event of a claim. From a customer’s perspective it is a distinction worth looking out for if you want to ensure you have a remedy for mere (trivial) negligence on the part of those providing financial or other services and want to ensure you receive the highest standards of care.
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: 0.0/10 (0 votes cast)
Tags: Commercial contracts, contracts, gross negligence, negligence
Posted in Commercial contracts, In-house Lawyers, IT Contracts, Outsourcing | 1 Comment »
Monday, May 9th, 2011
Employers have long been liable to employees for financial loss caused by an inaccurate reference. In McKie v Swindon College the High Court has extended the principle beyond the giving of a reference.
His new job at Bath City College brought Mr McKie in to contact with his former employer, Swindon College. Swindon gave him a glowing reference when he left in 2002 but in 2008 Swindon’s HR manager wrote an email to his opposite number at Bath saying they wouldn’t accept Mr McKie on their premises as there were safeguarding concerns about him.
The Court described the email as “largely fallacious and untrue.” Bath summarily dismissed Mr McKie as a result of the email and, as a result of the court’s decision, will be able to recover his financial loss from Swindon.
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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Tags: Bath City College, High Court, McKie v Swindon College, safeguarding, Swindon College
Posted in Employment, Social Care | No Comments »
