Archive for October, 2011
Tuesday, October 18th, 2011
From 1 January 2012 the Dilapidations Protocol finally becomes part of the Civil Procedure Rules. It’s been a long time in coming but it is likely to be welcome news to practitioners and clients alike.
The Dilapidations Protocol has been seen as best practice in dilapidations claims for many years but its formal adoption ought to provide greater certainty both in terms of what is expected of litigants and their advisors, but also the potential consequences of failing to adhere to it.
The requirement to ensure there is early exchange of information remains a central theme to the protocol and this will be particularly favoured by tenants seeking to understand the claim being made against them at the earliest opportunity. Landlords will be pleased to see the new requirement which obliges the tenant’s surveyor to endorse the schedule of dilapidations when answering the landlord’s claim.
Posted by Tim Rayner, who specialises in property litigation, advises in connection with the full spectrum of property related disputes and commerical property
Tim Rayner
0121 237 3949
trayner@brownejacobson.com
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Rating: 7.0/10 (4 votes cast)
Tags: civil procedure rules, dilapidations protocol, landlords claims, property, tenants
Posted in Property | No Comments »
Tuesday, October 18th, 2011
Last week we looked at the legal principle that a party cannot benefit from its own breach.
It’s worth remembering that you can exclude or modify this principle in your contract. The extent to which it is excluded or modified just depends on the form of words you choose – as a recent case shows.
As ever, you need to be careful with your drafting. In particular, if you list the circumstances when a party’s breaches of contract will prevent it from taking an action (in this case, serving a notice of rescission), this may have the effect of meaning other breaches of the contract will not prevent it from taking that step.
One further point – the clause in question was a late handwritten amendment and the judge commented that he didn’t think the parties had thought through its effect. In other words, it really is worth spending that little bit of extra time considering the implications of last minute changes to a contract …
Posted by Tim Claremont, who specialises in domestic and international engineering and construction, including contractual and delay claims across all forms of dispute resolution; also contract drafting and negotiation.
Tim Claremont
0115 976 6520
tclaremont@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: benefit principle, breach of contract, contract amendment, contract changes
Posted in Commercial contracts, Property | No Comments »
Monday, October 17th, 2011
When issuing a notice of termination of employment the general rule is that a clear and unambiguous notice is to be taken at face value and an employer has no right to withdraw it. However, there are certain situations (e.g. where notice is given in the heat of the moment) where this does not apply. These are known as the “special circumstances” exceptions.
What about when an employer intends to terminate the employment but on the basis of a misunderstanding? The Court of Appeal has held in CF Capital v Willoughby that an employer’s mistake in issuing notice of termination before agreement with the employee had been reached was not a special circumstance. The employer had intended to terminate her contract therefore it could not be unilaterally withdrawn.
If there is any scope for misunderstanding in a dismissal scenario employers are advised to send a note of the proposal and seek agreement from the employee before issuing the notice of termination.
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: cf capital v willoughby, Court of Appeal, notice of termination, specail circumstances, termination of employment
Posted in Employment, Retail | No Comments »
Friday, October 14th, 2011
A proposal for a common sales law across the 27 states of the EU to anyone opting into its terms has just been published. Does this signify a major development for businesses entering contracts throughout the EU?
In the short term, I confess, I doubt it – for one thing there already exists a voluntary piece of sales legislation to which businesses could opt-in if they wanted. I am of course referring to the United Nations Convention on Contracts for the International Sale of Goods (CISG), to which 76 countries have already signed up (with some notable exceptions such as the UK, India and Brazil).
An advantage the new EU instrument could have over the CISG however is a single supreme court (the ECJ) to determine how it should be interpreted. Over the long term we may yet all need to learn how it works alongside national contract law. I’ll certainly be watching to see how it develops.
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: CISG, Commercial contracts, common european sales law, ECJ, united nations convention on contracts
Posted in Commercial contracts, Consumer contracts, In-house Lawyers, Outsourcing | No Comments »
Thursday, October 13th, 2011
A preliminary injunction has been granted in Australia as part of a global intellectual property rights battle between Apple and Samsung.
The two technology giants, both global leaders within the smartphone market, are now battling it out within the rapidly expanding market for personal tablets.
As of April 2011, Apple initiated lawsuits alleging patent infringement for the use of touch screen technology. The claims specifically concern the iPad and Galaxy Tab 10.1, with legal action spanning 10 different countries.
The most recent development concerns a decision taken today (13 October 2011) by Judge Bennett. The judge granted a temporary injunction on the sale of Samsung’s Galaxy Tab 10.1 within Australia, prohibiting participation in the upcoming Christmas sales.
This is yet another victory for Apple, with similar rulings given in Germany and the Netherlands. Despite this, the conflict seems unlikely to die down, as Samsung has threatened injunctions to ban sales of the new iPhone 4S in France and Germany.
Posted by Oliver Laing, who specialises in intellectual property agreements and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Oliver Laing
0115 908 4854
olaing@brownejacobson.com
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Rating: 10.0/10 (3 votes cast)
Tags: Apple, galaxy tab, Intellectual Property, intellectual property rights, ip infringement, ipad, personal tablets, Samsung, smartphone, smartphone market, smartphone technology
Posted in Intellectual Property | No Comments »
Thursday, October 13th, 2011
Have you entered into an agreement for lease which is conditional upon the landowner/developer satisfying certain conditions, (such as obtaining planning, carrying out works etc), by a specified end date? Did the agreement also allow both parties to terminate if the conditions weren’t satisfied by this end date?
In these challenging times, it’s useful to remember the old adage that a party cannot benefit from its own breach. Recent case law upheld a prospective tenant’s argument that a developer could not terminate the agreement where it was in breach of its own reasonable endeavours obligations, despite this not being expressly set out in the drafting…so check the wording carefully (and of any exclusions) if you find yourselves unhappily on the wrong end of a termination notice. Footnote – we’ll have to see how this decision goes on appeal. We’ll keep you posted!
Posted by Sarah Parkinson, who specialises in property development and retail; heads up commercial property development practice, dealing with complex projects and commercial property transactions, including options and development agreements.
Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com
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Rating: 6.0/10 (1 vote cast)
Tags: benefit clause, breach of contract, Commercial contracts, conditional clause, contract termination, exclusion clauses, property developers, terminating a contract
Posted in Commercial contracts, Property, Retail | No Comments »
Tuesday, October 11th, 2011
The Government Actuary’s Department has just (10 October 2011) published the 7th edition of the Ogden tables. This is seen as an interim step towards a more substantially revised 8th edition, expected in Autumn 2012.
The update reflects changed mortality predictions published since the 6th edition and includes minor clarifications to the accompanying guidance, including an amendment to the definition of ‘disabled’.
Across the board, the tables show an average increase of around 4.5% at a discount rate of 2.5%, though the most substantial increases lie in the pensions tables so that the impact on claim reserves will be less.
A more substantial change would result from a change to the discount rate which is currently under review by the Lord Chancellor.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Actuary Department, browne jacobson, insurance, james arrowsmith, Mortality predictions, ogden tables pensions
Posted in Insurance, Pensions | No Comments »
Tuesday, October 11th, 2011
A senior Scotland Yard officer has warned motorists to beware of “cash for crash” insurance scams following the sentencing of six men charged with insurance fraud following three induced road traffic accidents totalling over £50,000.
Only one of those charged received a custodial sentence, jailed for 8 months after admitting conspiring to defraud insurance companies, while the remaining five received suspended sentences having admitted committing similar offences.
Contrast these sentences with those handed out in the recent riots where one rioter was jailed for six months for stealing a £3.50 case of water from a supermarket while another was jailed for five months for receiving a pair of shorts given to her after they had been looted from a city centre store.
Judges criticised for the apparent harshness of sentences given to rioters were defended on the basis that the sentences handed down had a deterrent effect. Perhaps the time has come for the courts to take a similar approach to insurance fraud, or else continue to be seen as a soft touch.
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 (11 votes cast)
Tags: browne jacobson, Cash for crash, fraud, induced traffic accidents, insurance, insurance fraud, insurance scam, litigation, motor, motor insurance fraud, planned traffic accidents, steven conway
Posted in Insurance, Litigation | No Comments »
Tuesday, October 11th, 2011
The Department of Health reaffirmed the Government’s commitment to increasing openness within the NHS by launching a consultation which aims to explore how it might impose a contractual ‘duty of candour’ on providers.
The consultation proposes to introduce obligations for providers to always be open with patients about incidents where things go wrong into the NHS Standard Contracts for acute, community, ambulance and mental health services.
Sanctions could include, amongst others, a deduction in the annual contract value, independent investigation or a written apology to the patient from the organisation’s Chief Executive.
The duty is purported to have the potential to support the development of stronger commissioner-provider relationships and to improve quality. However, it isn’t yet clear how the duty would interact with or improve upon existing duties to let patients know when things go wrong or whether patients would gain any additional support or direct benefit from the existence of a statutory, as opposed to a non-statutory, duty.
If you would like to contribute to the consultation click here.
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
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Rating: 7.0/10 (1 vote cast)
Tags: acute trusts, ambulance services, browne jacobson, Duty of candour, Emily Birkett, government, Government consultation, health, health consultation, mental health services, NHS, NHS standard contracts, patient relationship, patient well being
Posted in Health, NHS | No Comments »
Tuesday, October 11th, 2011
2012/13 will see various changes to PbR, as announced in this Dear colleague letter.
PbR will be expanded to include adult mental health services. Service users will be allocated to care categories (or “clusters”) and each cluster will be allocated a unit price (agreed locally for 2012/13). Draft mental health PbR guidance has also been published (feedback is required by 4 November).
The letter also details various other proposals for 2012/13, including:
- more “best practice tariffs”;
- certain currencies and tariffs being mandated, and the introduction of some new non-mandatory currencies;
- acute providers being responsible for 30 day post-discharge support for a small number of conditions; and an update to the ICD-10 disease classification system.
A “sense check” on the revised tariff is underway. This will be followed later this year by road testing of the tariff and associated PbR guidance.
Provider organisations will always be wary of changes to PbR. Mental health providers will be relieved that there should be a cost-neutral impact for 2012/13.
Posted by Oliver Pritchard, who specialises in health and social care sectors for both public & private sector clients; corporate acquisitions & disposals; corporate governance; director’s duties; shareholders’ agreements and GP consortia.
Oliver Pritchard
0115 976 6292
opritchard@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: adult mental health, browne jacobson, health, mental health, mental health providers, mental health services, NHS, payment by results, pbr
Posted in Health, NHS, Social Care | No Comments »
Tuesday, October 11th, 2011
Michael Gove has announced his approval for 13 University Technical Colleges (UTCs) and around 55 free schools (which can be set up by parents, community groups or other organisations) to open from September 2012 onwards.
Pupils who choose to opt out of mainstream schools at 14 can enrol at UTCs, (which are sponsored by local universities and employers), where they will be taught specialist subjects such as engineering, manufacturing and construction. Silverstone plan to follow in the footsteps of JCB (whose UTC opened in Staffordshire last year) and open a UTC, teaching mechanics, engineering, and event management.
Critics argue that UTCs will mean pupils specialise at too early a stage in their school career. But for those disengaged pupils in mainstream education and/or those with a passion for these specialist subjects, enrolling at a UCT could be their lifeline. Looking ahead, these specialist skills could give a much-needed boost to the British economy, be an alternative to the university route and open more doors for young people upon leaving education – watch this space.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: browne jacobson, Education, free schools, Hayley Roberts, mainstream education, mainstream school, schools, secondary education, technical college, University technical colleges, UTCs
Posted in Education | No Comments »
Monday, October 10th, 2011
On 1 October 2011 a ban came in to force on the sale of tobacco products from vending machines in England. Displays of tobacco advertisements on vending machines are also banned.
A person found guilty of selling tobacco from a vending machine will face prosecution, and if convicted in the Magistrates court could be ordered to pay a fine of up to £2,500.
The ban is intended to reduce smoking among young people. This will particularly affect 11-15 year olds, who apparently regularly use vending machines as their source of cigarettes.
There is clear public support for a ban on the sale of tobacco from vending machines. However, the tobacco industry argues that vending machines could be modified to require tokens or ID cards, rather than having an outright ban. Nevertheless, you may be in the 65% of people who are in favour of a ban? ( according to a YouGov survey commissioned by ASH).
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: advertising, advertising ban, ASH, Brands, browne jacobson, cigarette advertising, cigarette advertising ban, cigarette sales, Fiona Carter, health, tobacco advertising, tobacco advertising ban, tobacco industry, tobacco sales, underage smokers, underage smoking
Posted in Advertising & Marketing, Health, Regulatory | No Comments »
Monday, October 10th, 2011
A magistrates’ court clerk has become the first person to be charged with an offence under the Bribery Act 2010. Munir Patel has been charged with requesting and receiving a bribe to improperly perform his functions. It is alleged that Mr Patel agreed to influence the outcome of criminal proceedings in relation to a motoring offence, in exchange for £500. The prosecution was brought after an investigation by the Sun.
Although this first prosecution is not the Act’s dramatic debut that we had perhaps expected, it is of course necessary that if a public official is found to be corrupt, then punishment should follow. However once the regulator has completed a first prosecution under the Act, we expect them to become more confident about prosecuting more complicated business cases.
The approach of the Courts will become clearer on 14 October 2011, when Mr Patel appears before Southwark Crown Court.
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: bribery, bribery act, browne jacobson, criminal proceedings, Fiona Carter, Southwark Crown Court
Posted in Regulatory | No Comments »
Monday, October 10th, 2011
According to the government, more than 1.2 million pupils are now in education in academies. The 1000th academy to choose academy status has just opened and joins more than 1,300 academies that are already in operation across the country. The pace of change seems to be surpassing even the Department for Education’s expectations.
This week the government also announced its plans for stepping up funding into setting up free schools in areas where there are shortages of pupil places.
Pupils in the new models of educational establishments are able to benefit from greater freedoms, the ability to innovate and to raise standards. Ministers hope that the range of schools available now to parents, such as academies, Free Schools and Studio Schools, will help transform the attainment and achievement of pupils in England.
Laura Richards
0115 908 4886
lrichards@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: academies, browne jacobson, Education, education in England, education standards, free schools, government, Laura Richards, schools, student achievement, student attainment Government education initiative, studio schools
Posted in Education | No Comments »
Friday, October 7th, 2011
HM Revenue & Customs have recently published some further guidance on how they will implement the VAT impact on salary sacrifice schemes of the European court case of Astra Zeneca. As HMRC previously outlined in their Brief 28/11 in the summer, as of 1 Jan 2012 many employers who operate salary sacrifice schemes may have to start accounting to HMRC for VAT on the value of the non-cash benefits they provide to their employees under those schemes.
In this latest Brief, HMRC have published further guidance on how these VAT changes will affect existing salary sacrifice schemes, and given details on transitional arrangements.
Any employers currently operating salary sacrifice schemes should look at this latest HMRC Brief as soon as possible, to check on how they might be affected by this VAT change coming in on 1 Jan 2012.
Posted by Andrew Noble, who specialises in corporate and real estate tax, employee share incentives, UK and cross-border; advises clients from private individuals to listed companies; Chartered Tax Adviser.
Andrew Noble
0121 237 3952
anoble@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Astra Zeneca, hmrc, salary sacrifice schemes, vat
Posted in Uncategorized | No Comments »
Friday, October 7th, 2011
Bang & Olufsen has been refused registration of the shape of one its speakers as a community trade mark. The General Court of the European Union confirmed that whilst the shape of a product may be registrable as a trade mark, a mark which consists exclusively of the shape which gives substantial value to the goods cannot: this is an absolute ground for refusing to register a mark. The court found that the design of the Bang & Olufsen speaker was an essential part of Bang & Olufsen’s branding and increases the value of the product as well as being a key selling point of the product. The shape therefore gives ‘substantial value’ to the product making it unregistrable.
This has to be the right decision: whilst the design of the product gives value to the goods it does not act as a badge of origin.
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: 0.0/10 (0 votes cast)
Tags: Bang & Olufsen, community trade mark, General Court of the European Union
Posted in Brands, Intellectual Property, Retail | No Comments »
Friday, October 7th, 2011
On Wednesday the High Court handed down its decision in the Halliburton Energy Inc’s Patent. The decision was a further development on the law of inherently patentable subject matter. Halliburton’s four patent applications had previously been rejected on the grounds that they were excluded from patentability as methods for performing a mental act and as computer programs, under Art 52 of the European Patent Convention (EPC).
The patents were for a method of designing a drill bit using computer simulation. The patents did not include the step of manufacturing the drill bit to the resulting design, as Halliburton did not want to include such a limitation.
The judge found that the patent applications did not fall within the exclusions for mental acts or computer programs contained in the EPC.
The decision is a welcome one, and should go some way to bridging the gap that exists between the UK Intellectual Property Office and the European Patent Office on the matter of patentability of software-related inventions.
Oliver Laing
0115 908 4854
olaing@brownejacobson.com
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Rating: 3.5/10 (2 votes cast)
Tags: European Patent Convention, European patent Office, Halliburton Energy Inc's Patent, High Court, Patents, software inventions, UK Interllectual Property Office
Posted in Intellectual Property | No Comments »
Thursday, October 6th, 2011
Directly advertising food to children can significantly affect their choices.
A study published in the US Journal of Pediatrics shows that, after being shown an advertisement, 71% of children chose a coupon for french fries while their parents remained neutral. The figure only dropped to 55% when parents intervened to ask children to choose the healthy option.
In 2006 the UK announced that all advertisements for foods high in fat, salt and sugar (HFSS) would be removed from all programmes which hold particular appeal for children up to the age of 16.
This study will reignite the debate about advertising and childhood obesity. Whilst there is a strong case for tighter laws on advertising junk food on US television channels the same cannot be said for the UK which has some of the strictest laws in the world on advertising HFSS foods.
Compared to influences such as peer pressure, lifestyle, and income levels the overall impact of advertising on food choice is smaller.
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
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Rating: 0.0/10 (0 votes cast)
Tags: advertising HFSS foods, childhood obesity, food advertising to children, HFSS, Journal of Pediatrics
Posted in Advertising & Marketing, Brands, Food & drink, Retail | No Comments »
Thursday, October 6th, 2011
There are an increasing number of claims being made against local authorities for failing to take children into care. Whether or not a duty is owed to each particular child depends on the facts of the case – the closeness of the relationship between the authority and the child, the forseeability of harm, and whether it’s “just and reasonable” to impose a duty of care.
Cash strapped local authorities are now considering charging parents who put their children into voluntary care.
Both the arguments for and against such a policy are understandable. It’s been done in the past, but in the current climate there’s a risk that immediate savings will be more than set off in addressing future claims from children whose families descend into damaging crisis because the parents refused to pay for voluntary care.
If there is a change of policy it needs to be clearly stated, followed up with well evidenced clear and regular staff training, and closely policed.
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
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Rating: 0.0/10 (0 votes cast)
Tags: children in care, local authorities, Social Care, voluntary care
Posted in Local Authorities, Social Care | No Comments »
Thursday, October 6th, 2011
We often act for agencies that have employed people who are accused of abusing children. For the most part these agencies are publicly funded local authorities. The claimants themselves frequently have Legal Services Commission (LSC) certificates, which means both claimant and defendant are publicly funded.
A recent change in the law means that more and more claimants are suing their abusers direct, particularly when it is difficult or too expensive to demonstrate any local authority involvement/negligence. In EB v Haughton although the criminal court had found the abuser not guilty the Judge in the civil court found the alleged abuse had taken place and had caused the claimant injury and loss worth over £30K. It now transpires that Haughton had also a LSC certificate which paid his solicitor’s costs and means it is difficult for the claimant to enforce her award and her £111,000 costs ( I bet she was on a CFA). She has decided to sue the LSC. As far as we can make out, the claimant’s case is that the LSC owed her a duty of care not to fund an unmeritorious defence. We would be most surprised if this claim succeeds, but we do expect more claims based on the actions of individuals to focus on institutional defendants such as local authorities, schools and charitable organisations who will be seen to have larger pots of funds then the abusers themselves.
Could publicly funded institutional defendants bring similar claims against the LSC? Watch this space.
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
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Rating: 10.0/10 (1 vote cast)
Tags: Claims, EB v Haughton, Legal Services Commission certificates, local authorities, LSC
Posted in Local Authorities, Social Care | No Comments »
