Archive for August, 2011
Thursday, August 18th, 2011
Following the publication of two strategy documents in November 2010, the government has this week (16 August 2011) launched three consultation papers setting out the next phase of FE reform.
This consultation process is seeking views on how best to implement the governments latest proposals, including; proposals to develop the shape of the sector, provide greater freedom and flexibilities, implement FE loans to encourage shared responsibility, simplify the funding system and review and improve literacy and numeracy provision for adults.
Business Secretary Vince Cable, said “With better informed, more empowered learners and providers freed from petty bureaucracy, post-school adult learning will take its rightful place at the heart of our communities.” The consultation closes on Friday 21 October so whether this noble statement becomes reality once feedback has been collated remains to be seen.
Posted by Richard Cox, who specialises in corporate transactions and advises colleges on numerous matters including joint ventures and partnerships, college mergers and funding disputes.
Richard Cox
0115 976 6135
rcox@brownejacobson.com
Tags: Business secretary Vince Cable, FE loans, further education, government
Posted in Education, Further Education | No Comments »
Wednesday, August 17th, 2011
Numbers of apprenticeships have sky-rocketed fuelled by the governments drive to tackle massive youth unemployment but what are the implications?
The main purpose of an apprenticeship is to provide training; working is secondary. Apprentices have enjoyed additional rights compared to employees; premature termination of an apprenticeship can result in compensation for loss of wages, loss of training and loss of status.
However, from April 2011 apprenticeship agreements are to be regarded as contracts of employment under the Apprenticeships, Skills, Children and Learning Act 2009. In other words, an apprentice is to be treated as an employee – but only where the employer complies with certain conditions in the Act; including that the apprentice has a ‘prescribed form’ apprentice agreement. The problem is that employers may have to wait until 2013 to know what the prescribed form will look like!
In the meantime; employers should review their contracts with apprentices to ensure that they provide the requisite protection in the event that the apprenticeship has to be ended early. It remains to be seen what provisions the prescribed form apprenticeship agreement will include.
Posted by Dawn Lobley, who specialises in employment law, acting for clients on matters including unfair dismissal, redundancy, restructure, TUPE, contractual issues and discrimination, plus immigration and data protection.
Dawn Lobley
0115 976 6185
dlobley@brownejacobson.com
Tags: apprenticeships, Children and Learning Act 2009, employers, prescribed form, Skills, youth unemployment
Posted in Education, Employment, Retail | No Comments »
Wednesday, August 17th, 2011
Earlier this year (2011) the ASA ruled that an Optical Express TV advert and brochure which implied that the two times Open winner, Padraig Harrington, had benefited from surgery with them had been ‘misleading’.
The company stood by its advert and challenged the ASA’s decision, claiming that Mr Harrington was a patient and had received laser eye surgery at their clinic. They were particularly riled that the complaint had been raised by another laser eye surgery provider, and not by a consumer. They said that they would take “every possible legal action available to [them] to challenge the decision and have it reversed.”
The ASA re-deliberated and in a crushing blow to Optical Express, today confirmed its initial verdict: The ad was misleading.
Optical Express took a risk when it decided to challenge the ASA’s decision and is likely to suffer further negative publicity as the ASA’s decision is bound to feature in the press and those who missed it the first time are given a second chance to see that the ASA don’t quite believe what they see!
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
Tags: advertising standards authority, laser eye surgery, misleading adverts, Optical Express, Padraig Harrington
Posted in Advertising & Marketing, Brands | No Comments »
Monday, August 15th, 2011
Imagine buying something big e.g. a ship or production line. The seller wants a payment upfront. You agree in return for a promise from a third party that you’ll be repaid if the seller fails to deliver (an “advanced payment guarantee”). The seller disposes of its business, meaning that the guarantee no longer refers to the right party. Can you still enforce the guarantee?
The Court of Appeal gave a purchaser in this situation greater comfort by treating the advanced payment guarantee as a performance bond (a primary obligation). Interpreted this way, rather than as a guarantee (a secondary obligation), the purchaser can enforce it even where the original contract for sale has been changed – which might otherwise have rendered a guarantee void.
With so much at stake and an “all or nothing” result, there is no substitute for clear drafting to make it clear that rights are intended to survive. A few extra words in the guarantee could have avoided the dispute entirely.
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
Tags: advanced payment guarantee, Commercial contracts, Court of Appeal, performance bond
Posted in Commercial contracts, In-house Lawyers | No Comments »
Friday, August 12th, 2011
Unlike litigation in the civil courts, costs orders in the employment tribunals are the exception rather than the rule. An employer successfully defending a claim against it can only recover its legal costs of doing so if it can show that the claimant behaved “vexatiously, abusively, disruptively or otherwise unreasonably” or that bringing the case was “misconceived.” In reality the employment tribunals award costs in only 0.2% of cases, and even then the level of award is often much lower than the legal costs incurred.
However, in a recent case an employment tribunal awarded costs of £100,000 against a former executive of Pertemps after she was unsuccessful in a sexual harassment case against her former employer. It is an encouraging example of an employment tribunal using a costs order in a case which, according to one newspaper, it found to be “vexatious, frivolous and [a waste of] the court’s time.”
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
Tags: employment tribunal, litigation, Pertemps, recovery of legal costs, sexual harassment case
Posted in Employment | No Comments »
Friday, August 12th, 2011
As details of those involved in the recent rioting start to emerge, some employers might decide they no longer want to employ those who are implicated in criminal activity particularly where their identities have been revealed in the press.
Whether you can dismiss an employee involved in the rioting will depend on whether you can establish a sufficient connection between the conduct and the employee’s job. So while a retailer might be able to fairly dismiss an employee filmed looting a shop, the case of a non-retail worker may be more difficult to justify.
A fair dismissal procedure, in line with the ACAS Code, should always be followed.
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
Tags: criminal activity, employee dismissal, employers, looting, retailers, rioters
Posted in Employment, Retail | No Comments »
Friday, August 12th, 2011
The Department of Health has set out key details on the development and authorisation process for clinical commissioning groups (CCGs) in a draft guidance document leaked yesterday.
Developing clinical commissioning groups: towards authorisation sets out 6 key competency domains that CCGs will be required to meet. These include a strong clinical and professional focus, proper constitutional and governance arrangements and evidence of clear and credible plans for carrying out their functions.
It indicates that CCGs will undergo a risk assessment between October – December 2011 and paves the way for CCGs to begin making applications for authorisation to the NHS Commissioning Board from summer 2012.
The draft guidance gives the first clear indication as to the competency boundaries but acknowledges that it is simply the “early thinking on the authorisation process”. Whilst the broad principles have been set the substance of the criteria is yet to be developed and remains subject to further guidance and policy changes as the CCGs progress towards authorisation.
Posted by Emily Birkett, who specialises in advice to NHS bodies ; their local authority partners and related organisations in commercial law, contracting, procurement , competition governance and all aspects of primary care.
Emily Birkett
0121 237 3934
ebirkett@brownejacobson.com
Tags: CCG's, Commissioning, department of health, risk assessments
Posted in Health | No Comments »
Friday, August 12th, 2011
With the anniversary of the “converter” academy fast approaching, the Department for Education has recently published the August figures for academy converters and the programme is showing no sign of slowing down. As of 1 August 2011, there are 1,070 academies open in England, with 269 opening in the last month.
Those schools fortunate to meet the 1 August deadline were able to benefit from the 10% cap on the Local Authority Central Spend Equivalent Grant and this to some extent explains the steep rise in converters. However, with the programme now open to all schools and special schools being able to convert from 1 September the number of conversions is likely to remain high.
The educational landscape has changed significantly in the academic year of 2010/2011 and with the extension of the academies programme that transformation is set to continue.
Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com
Tags: academies, Department for Education, local authority central spend equivalent grant, schools
Posted in Education | No Comments »
Thursday, August 11th, 2011
Its apparent that social media has been used extensively by those involved in the riots to organise and incite unrest. BlackBerry Messenger (BBM) has been the most popular method of communication with messages then being posted on social network sites like Twitter and Facebook to increase circulation.
Research in Motion, the maker of BlackBerry and a global leader in wireless technology, has committed to assist the authorities ‘in any way it can’ and the police have said they will track down and arrest those who have posted ‘really inflammatory’ messages on BBM and social network sites.
However, its going to be a difficult task due to the number of messages involved, potential resistance from media companies to handover user details and, because BBM messages are usually encrypted when they leave the sender’s phone making tracing calls difficult.
The police will have to adapt their own policing methods to tackle this use of technology as a means of organising unlawful activities.
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
Tags: BBM, BlackBerry Messenger, Facebook, Reasearch in Motion, riots, Social Media, Twitter
Posted in Brands, Data Protection, Intellectual Property | No Comments »
Thursday, August 11th, 2011
The Highways Agency, which oversees motorways and trunk roads is introducing rules requiring contractors to carry out emergency repairs only if the potholes are more than 4cm deep or 15cm wide, meaning that potholes under this size will not be repaired.
Previously contractors were required to ensure the road gave an “even, comfortable and quiet” ride and to patch even minor defects within 24 hours.
Concerns have been raised that this will lead to more temporary speed restrictions being imposed and cost more in the long term because there will be less preventive maintenance but the real concern must be to the safety of the road network with the increased risk of motor accidents and the increase in claims against the Highways Agency.
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
Tags: budgets, code of practice for highway maintenance, emergency repairs, Highways Agency, local authorities, potholes, Steven Conway
Posted in Insurance, Local Authorities | No Comments »
Wednesday, August 10th, 2011
Disturbances in London and major cities is expected to cost the country around £200 million. While domestic and many commercial insurance policies will provide cover, the Riot Damages Act is broadly expected to permit both insurers and uninsured victims to recoup losses in relation to property damage. It is unclear what the police position will be in relation to whether the disturbances fall within the act.
Claims under the act must be submitted within 14 days of the damage taking place, though the ABI and others are lobbying for an extension to 42 days. Insurance policies typically make it a condition precedent that incidents be reported within 7 days. Prompt action is essential as full details of the damage must be submitted.
- Policyholders must ensure they report damage to insurers immediately, or risk having their claim rejected
- Insurers should encourage policyholders to report losses, and must ensure claims are submitted to relevant police authorities within 14 days
Posted by Derek Bambury, who specialises in professional indemnity, dealing with claims against a wide range of professionals; experienced in policy coverage disputes.
Derek Bambury
0115 976 6204
dbambury@brownejacobson.com
Tags: ABI, birmingham, Claims, commercial insurance policies, london, manchester, Police, Riot Damage Act
Posted in Insurance | No Comments »
Monday, August 8th, 2011
The Insolvency Service has released statistics for insolvencies in the second quarter of 2011 which demonstrated the continued fragility of the UK economy. There were 4,233 companies that entered into insolvent liquidation, which was an increase of 2.7% on the previous quarter and an increase of 4.4% on the same period a year ago. Curiously, although liquidations have risen, other forms of corporate insolvency such as administration have decreased by 6% on the same period a year ago. This may be the result of recent cases which make administration unattractive or creditors becoming increasing aggressive in the use of winding up petitions.
There were 30,513 individual insolvencies in the second quarter of 2011, a decrease of 12.2% on the same period a year ago.
Posted by Vicki Dunstall , who specialises in business recovery and insolvency matters for creditors and practitioners; experienced at asset sales and transaction avoidance claims; commercial dispute resolution; general contractual disputes.
Vicki Dunstall
0115 976 6502
vdunstall@brownejacobson.com
Tags: creditors, insolvency, liquidation, The Insolvency Service, Uk economy, winding up petitions
Posted in Business recovery | No Comments »
Friday, August 5th, 2011
Buyers acquiring multiple residential properties in one go may be able to pay less Stamp Duty Land Tax (SDLT) than before.
The relief was announced in the Budget earlier this year but has only recently come into force (from 19 July 2011).
Instead of the existing linked transaction rules which use the aggregate purchase price to set the rate of SDLT, this new SDLT relief uses the average price of the residential properties being bought to set the SDLT rate. For multiple residential purchases this could provide up to a 3% SDLT saving.
The relief could be great news for bulk buyers in the residential sector. But as ever with SDLT the devil is in the details, which could restrict how much relief is available to begin with or lead to claw back of relief later, depending on the circumstances.
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
Tags: bulk residential purchases, multiple dwellings, SDLT, Tax
Posted in Tax | No Comments »
Friday, August 5th, 2011
The Civil Justice Council are to put together a working party to develop practical proposals on the back of the Government’s plans following Lord Justice Jackson’s review of civil litigation costs.
The working party will look at implementing secondary legislation, focusing on qualified one way cost shifting, the introduction of additional sanctions and rewards under Part 36 as well as the detail of the proportionality test and when the test should not be applied.
Crucially, the party will not be considering the government’s original policy objectives but focusing instead on the practicalities of introducing these measures.
The working party are expected to complete papers on these proposals by the end of September this year.
Insurers will be interested to note that representatives from key civil law areas affected by the proposals will be invited by the CJC to attend and provide feedback at a workshop expected to take place in October.
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
020 7337 1019
nevans@brownejacobson.com
Tags: civil justice, Civil Litigation Costs, civil litigation reforms, cjc working party, one way costs shifting, Part 36, professional indemnity, proportionality test
Posted in Insurance, Professional Indemnity | No Comments »
Friday, August 5th, 2011
Theresa May and Business Secretary Vince Cable recently sent out a letter to all FTSE 350 companies setting out the business case for increasing the representation of women in senior positions. It quoted figures which show that companies with more women on their boards outperform their rivals.
Before the stampede to fill their boards with women, employers should remember that the Equality Act stopped short of allowing positive discrimination. What it does permit is positive action to encourage an increase in representation where minorities exist. Positive action is limited to very particular circumstances, including when the man and woman are equally qualified.
The government will be hoping that this guidance will encourage firms to promote more women to senior positions, without the need to pass additional legislation. However, as the law currently stands, firms will need to be careful if they wish to promote based on gender rather than competency, as this could lead to claims of discrimination from male candidates.
Ben Standing
0121 237 4563
bstanding@brownejacobson.com
Tags: employment law, Equality Act, HR, positive discrimination, Theresa May, Vince Cable, women in business
Posted in Employment | No Comments »
Friday, August 5th, 2011
On 3 August, the Government announced its full support for the recommendations made in the Hargreaves Report on intellectual property and growth.
The Government revealed its goal to “have measures in place by the end of this Parliament” and will prepare more detailed proposals for consultation. The report’s recommendations include:
- the creation of a digital copyright exchange which would assist the buying and selling of digital copyright licences and add up to £2.2 billion to the UK economy by 2020
- allowing copying of data for private purposes or where it does not damage the underlying aims of copyright, which would enable private users to copy media from one format to another (e.g. copying iTunes tracks onto a CD)
- adapting the patent and design frameworks to enable IP law to keep up to date with technology and business practices.
The Government’s response demonstrates a commitment to assist UK businesses in using intellectual property but it remains to be seen how, and whether, such assistance will be given.
Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com
Tags: copyright, design frameworks, hargreaves report, Intellectual Property, Patents, Vince Cable
Posted in Intellectual Property | No Comments »
Friday, August 5th, 2011
The Department of Health yesterday issued the first part of the long awaited guidance on the future ownership and management of the existing PCT estate.
The guidance specifies five core principles underpinning the final arrangements of where the estate is to go:
- Protecting assets and maintaining future flexibility
- Ensuring efficiency
- Supporting the provision of safe, fit for purpose buildings
- Ensuring value for money
- Observing effective estate management
The specific guidance deals with those premises providing community services (community properties). These may transfer to aspirant community foundation trusts, other NHS trusts and foundation trusts (recipient trusts) who occupy more than 50% of the lettable area of a property. We will have to wait for further guidance on surplus land, administrative premises and, perhaps most interestingly, LIFT and PFI premises.
The timetable in the guidance seems extremely tight. PCTs must review and provisionally agree lists of transferring properties with affected recipient trusts by 14 September 2011. Whilst the work carried out for the transforming community services transfers earlier this year will assist, this is still a lot of work and negotiation - particularly as the recipient trusts have to be ‘willing’ recipients.
Posted by Thomas Howard, who specialises in commercial property with extensive experience of advising health clients on all property related matters and advising commercial clients on site acquisitions and disposals.
Thomas Howard
0121 237 3951
thoward@brownejacobson.com
Tags: department of health, primary care trusts
Posted in Health, Property | No Comments »
Wednesday, August 3rd, 2011
Public bodies acting in good faith to bring proceedings to the Court of Protection appropriately should not fear a costs order, but where delay in doing this makes the case more complicated and costly, they can expect to be punished in costs, as well as publicity.
In the long running Deprivation of Liberty case of G v E, Manchester City Council was named and shamed for breaching Articles 5 (liberty) and 8 (family life) of the European Convention by removing a young man with learning difficulties from his foster family, and putting him into a supported living arrangement without lawful authority.
The Court of Appeal has now (2 August 2011) upheld the costs order that the local authority should pay a hefty chunk of the family’s legal costs, rumoured to run to hundreds of thousands of pounds. After the recent judgment in Neary, this is another good reason to be getting appropriate cases to Court as quickly as possible.
Posted by Ben Troke, who specialises in clinical negligence; health law; access to NHS and social care and funding; Court of Protection / Mental Capacity Act; Deprivation of Liberty Safeguards; NHS Constitution and patient rights.
Ben Troke
0115 976 6263
btroke@brownejacobson.com
Tags: costs order, councils, Court of Protection, deprivation of liberty, European Convention, G v E, local authorities
Posted in Local Authorities, Social Care | No Comments »
Wednesday, August 3rd, 2011
The European Court of Justice has previously held that trade mark proprietors cannot object to pharmaceuticals being repackaged if repackaging is necessary to market the product, it does not affect the products’ condition, the packaging clearly identifies the repackager, is not defective, and the importer gives notice to the trade mark proprietor.
Merck brought two cases complaining that various companies had infringed its trade marks by selling repackaged products which stated the repackaging had been carried out by one company when it had actually been carried out by another company in the same group.
Last week the court held that Merck’s rights were sufficiently protected by the companies marketing the pharmaceuticals putting their name on the packaging and therefore there was no trade mark infringement.
It is also worth noting the court’s previous comments that derogations from free movement of goods will only be permitted to the extent necessary to protect the specific subject matter and the essential function of a trade mark.
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
Tags: European Court, ip, Merck, pharmaceuticals, trade marks
Posted in Intellectual Property | No Comments »
