Archive for December, 2011
Friday, December 23rd, 2011
Businesses which make consumers “pay for paying” using their card on the internet have been heavily criticised by consumer groups. Consumers find it unfair to be charged (a) more than the cost to the business of processing the transaction (b) per item purchased and (c) without being notified of the charge up front. Today it has been announced that the Government intends to ban this practice.
This is perhaps a non-story because last week, the EU Consumer Rights Directive came into force. This requires the UK to make a number of changes to consumer law (some positive, some negative) by December 2013 (including such a ban), so that consumer protection is fully harmonised across the EU. But the Government does propose to put a ban in place earlier, in 2012.
To get a PR advantage over slower competitors, businesses might want to make the changes to their terms and conditions and websites before they become mandatory. Consider it an early Christmas present to your customers!
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: charging for using cards, consumer law, consumers, eu consumer rights directive, government, Retail
Posted in Advertising & Marketing, Brands, Retail | No Comments »
Friday, December 23rd, 2011
This time last year schools and other children’s organisations were up in arms over Littlegossip website – a site that lets users anonymously post gossip about educational institutions. It has been reported that comments posted on the site included threats, racial slurs, sexual abuse and other forms of abuse.
The effect of the uproar in 2010? The site closed for 24 hours only to reopen with a tick-box for users to confirm they were over 18. This was meant to appease critics. Fast-forward one year and whilst the DfE has promised it is taking steps to have the site shut down, schools cannot sit back and rest easy.
Cyber-bullying is a deepening issue. Schools need to take reasonable steps to protect staff and pupils from cyber-bullying. As a minimum, schools should have a clear e-safety policy, regular dialogue with parents and pupils on the risks of social-media sites and signed acceptable-use-policies. The DfE are stepping in, but schools need to keep up their good work too.
Posted by Hayley Roberts, who specialises in education law advice to schools and academies, including advice on teaching schools, collaboration models and partnership structures, school companies, and a wide range of pastoral issues.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Tags: cyber-bullying, Department for Education, educational institutions, littlegossip website, Social Media
Posted in Education | No Comments »
Thursday, December 22nd, 2011
The Government’s adoption advisor and former chief executive of Barnardo’s, Martin Narey, has branded the adoption system as ‘not fit for purpose’. So, an overhaul is planned.
Under the current system the wait for adoption averages over 2 years and around 1,000 children a year are unable to find families. This statistic is not helped by the system discouraging new applicants and existing applicants being turned away for being overweight or for previously smoking. There is clearly some work to do here.
Tim Loughton, has asked a group of experts to draw up new plans for assessing potential adoptive parents; not an enviable task. Whilst improvements must be possible, striking the right balance between protecting some of the most vulnerable children in society and opening the door to more applicants will prove challenging.
Social Workers have responded by saying that delays are an essential part of ensuring matches between children and adopters are sound and the risk of breakdown limited. There is a risk that for the sake of speed and numbers, the quality of assessments of potential adoptive parents could be reduced.
Kate Bear
0115 976 6104
kbear@brownejacobson.com
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Tags: adoption system, barnardos, Martin Narey, Social Care, social workers, Tim Loughton, vulnerable children
Posted in Social Care | No Comments »
Thursday, December 22nd, 2011
The DfE has published a consultation on the revised statutory guidance and regulations for school exclusions. They are inviting views on its revised guidance for exclusions from schools and pupil referral units and also the draft School Discipline Regulations 2012. The consultation closes on 17 February 2012, so now is the time to review the draft and add your comments.
There are some interesting changes proposed. The main themes are the way permanent exclusions are challenged, the introduction of independent review panels, time limits on decision making and the ability for a special educational needs expert to attend an IRP. The government’s drive to reduce red tape and slim-down guidance is clear to see in this consultation – 35 pages of new guidance compared to the 80 pages in the 2008 version. We all want short, concise guidance, but we all want it to do the job too. Let’s hope size has not prevailed over quality.
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: Department for Education, draft school discipline regulations 2012, Education, education act 2011, IRP, school exclusions, special educational needs, statutory guidance
Posted in Education | No Comments »
Wednesday, December 21st, 2011
Yesterday the publication of the European Parliament and European Council’s proposed revisions to the procurement directives was published, setting out their vision for the future of procurement law.
One of the key issues during the consultation was whether the traditional distinction between Part A and Part B Services – a key issue in the health sector – would remain? The answer in short is no but as ever there are exceptions. Healthcare service contracts below €500,000 will be presumed to have no cross border interest and be outside the application of the procurement rules. However, for those contracts over €500,000 there is a specific regime and an obligation to comply with the principles of equal treatment and transparency.
A step forward? The clear statement on no cross-border interest below the threshold is definitely to be welcomed. However, even where there is no cross border interest the principles and rules for cooperation and competition still remain and healthcare bodies will still be required to adhere to those.
Posted by Rachel Whitaker, who specialises commercial contracts, projects, competition law, procurement and state aid; clients include NHS bodies, local authorities, RDAs and national and international private sector clients.
Rachel Whitaker
0115 976 6538
rwhitaker@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: European Council, European Parliament, health bodies, part a and part b services, procurement law, proposed procurement directive
Posted in Health, NHS, Procurement | No Comments »
Wednesday, December 21st, 2011
After a lengthy legal dispute, the International Trade Commission (a US trade panel that investigates patent infringement involving imported goods) has ruled that HTC phones infringe one Apple patent.
HTC will by 19 April 2012 remove from all their devices the infringing feature, which enables the user to convert embedded data (such as a phone number) into a hyperlink.
The ITC embarked on their initial investigation in April 2010 after Apple complained that HTC infringed ten patents, which could have led to a ban of all HTC devices in the US market. Apple later dropped six patents and an ITC judge ruled that HTC had infringed two of the remaining four patents. This overdue final ITC decision, which follows a request for a review of their previous ruling from both companies, has been welcomed by the Taiwanese mobile phone-maker.
This result will be of interest to those following the patent disputes that Apple are embroiled in relating to Android technology, most notably with South Korean rival Samsung.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: android, Apple, copyright, Copyright Designs and Patents Act, HTC, International Trade Commission, patent, Samsung, smartphone
Posted in Advertising & Marketing, Brands, Intellectual Property | No Comments »
Tuesday, December 20th, 2011
Today (20 December 2011) marks the publication of the European Parliament’s and European Council’s proposed revisions to the procurement directives, setting out their vision for the future of procurement law which they anticipate being implemented into UK law by June 2014
The commission has signalled a clear intention to help SMEs navigate the public procurement minefield more successfully. Proposed changes include a reduction in potential barriers to participation and a requirement for contracting authorities to accept self-declarations as prima-facie evidence for selection purposes. Contracting authorities will also subject to certain exemptions, be required to consider subdividing public contracts above €500 000 into homogeneous or heterogeneous lots and, if they fail to do so, provide a reason as to why they have not. The draft directive also sees a restriction on what can be demanded in relation to turnover requirements on bidders for public contracts : this will now be limited to three times the estimated contract value, except in justified cases.
This will clearly be welcomed in the SME sector, although time will tell how burdensome some of these requirements will be on the public sector.
Posted by Sharon Jones, specialising in: joint ventures, complex commercial agreements, projects and competition law (including public procurement, state aid);clients: local authority, health, governmental, private sector bodies.
Sharon Jones
0115 976 6284
sjones@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: European Council, European Parliament, procurement law, public procurement, SME's
Posted in Procurement | No Comments »
Tuesday, December 20th, 2011
First there was ECJ decision in Akzo Nobel suggesting that advice from in house counsel on competition issues would not be subject to legal advice privilege (creating a practical problem for in house lawyers advising their employer on competition issues).
Then in May the first instance court of the European Union took the view that in house counsel should not be able to plead proceedings before it – a judgement that was appealed in August.
Last week The Law Society published its letter to Ken Clarke, urging him to intervene in the appeal – but could an intervention really prevent the erosion of the in house lawyer’s role before the European Courts, now that Akzo Nobel has set a precedent? Should the appeal fail its likely to have profound consequences for in house lawyers.
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: akzo nobel, ECJ, European Court, in house lawyers, Kenneth Clarke, law society
Posted in Commercial contracts, Consumer contracts, In-house Lawyers, Public Sector | No Comments »
Tuesday, December 20th, 2011
The government has announced that changes to the curriculum in English, science, maths and I.T. have been pushed back a year – to autumn 2014. The reason is to allow more time for interested parties to give their views so that a “genuinely word-class education system” can be created.
Critics have pointed out that as more and more schools convert to academies the proposed changes may be pointless since academies have freedom over their curriculum.
There are currently 1,463 academies open (the majority of which are secondaries) and hundreds more academy conversions are in the pipeline. In addition, the government has made it clear that poorly performing schools will be forced to partner-up with outstanding schools and become academies.
If the pace of conversions keeps up, the number of schools affected by the change in curriculum will be few and far between. The government hopes academies will voluntarily adopt the changes come 2014, but will not be able to guarantee this will be the case.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Tags: academies, academy conversions, curriculum changes, Education, government, outstanding schools
Posted in Education | No Comments »
Tuesday, December 20th, 2011
A new European case has highlighted once again the importance of distinguishing between selection and award criteria in a procurement exercise. Evropaiki Dinamiki (European Dynamics) challenged the Commission’s awarding of a contract based on “experience”. This was held to be an infringement of the rules governing the awarding of contracts financed by EU budgets which require the award to be based on either lowest cost or best value for money.
This decision is equally applicable for contracting authorities in the UK where best value for money equates to most economically advantageous tender under the 2006 regulations.
If awarding on the best value for money basis the award criteria must relate to the work to be carried out under contract itself and the management of the contract and not previous work by the tenderer. The wording of the award criteria is extremely important as the court will see that as being what the tenders were submitted and evaluated against.
Posted by Anja Beriro, who specialises in : local authority law, public sector procurements, commercial agreements, projects and shared services; clients: local authority and private sector bodies
Anja Beriro
0115 976 6589
aberiro@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: best value for money, eu budgets, most economically advantageous tender, Procurement, selection and award criteria
Posted in Procurement | No Comments »
Friday, December 16th, 2011
The ECJ ruling in Frisdranken Industrie Winters BV v Red Bull GmbH may make it harder to enforce trade mark rights against “behind the scenes” service providers who participate in the production of infringing goods.
Winters, a Dutch company, filled cans branded with names like “Bullfighter” and “Pitbull” with soft drink mix. The cans were produced by Smart Drinks, who then sold the finished products. As Smart Drinks were registered in the British Virgin Islands, Red Bull sued Winter for infringement of its Benelux trade mark.
The ECJ ruled that service providers would not infringe trade marks when executing a technical part of the production process of the final product where they had no interest in their external presentation. Winter created the technical conditions for Smart Drinks to use the products, but did not use the products themselves.
This position is likely to be controversial. The European Commission noted that this may allow producers to avoid enforcement by dividing the production process amongst such service providers.
Dave Drew
0115 976 6226
ddrew@brownejacobson.com
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Tags: benelux trade mark, European Commission, frisdranken industrie winters bv v red bull gmbh, smark drinks, trade marks
Posted in Intellectual Property | No Comments »
Friday, December 16th, 2011
The need to reduce bureaucracy in further education has been highlighted in a recent National Audit Office (NAO). The NAO estimates colleges spend around £180m annually on administering funding, qualification and assurance systems.
However the report has come under fire from the Skills Funding Agency for failing to “distinguish between administrative requirements essential for good stewardship of public money and those that may be unnecessary.
The Government recognises the need to reduce red tape. Earlier in the year it launched three consultation papers seeking views on how best to simplify the system, but with no specific plan on how to get there.
This issue is high on the agenda, particularly in light of the financial concerns of some colleges. However, until we know the true cost of administrative burdens, the 25% reduction in costs suggested by the NAO is purely speculative. We will await the outcome of the Government’s fast track investigation.
Whatever the outcome, the quality of college courses should not diminish.
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
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Rating: 10.0/10 (1 vote cast)
Tags: colleges, Education, funding systems, national audit office, skills funding agency
Posted in Education, Further Education | No Comments »
Friday, December 16th, 2011
Just in time to put a downer on the Christmas spirit the Court of Appeal has held that it was the responsibility of Father Christmas to keep his grotto clean and tidy and that he was responsible for an elderly lady tripping on a plastic icicle while she visited his grotto.
Joan Dufosse, 73, was having a photograph taken with her two grandchildren at Selfridges in Oxford Street store when she trod on the icicle and fell, fracturing her left thigh. Lord Justice Rix held that Mrs Dufosse was in no way to blame for falling, stating that “It was not her duty to ensure there were no tripping hazards in the room which might cause something amiss. This was purely the duty of Santa and the elf.”
Mrs Dufosse is now in line for a £30,000 payout as elves now fear for their jobs in cuts expected as a result of Santa having to meet this compensation claim.
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: 9.4/10 (7 votes cast)
Tags: compensation claim, Court of Appeal, lord justice rix, mrs dufosse, public liability, santa, selfridges, steven conway
Posted in Employers & Public Liability, Insurance, Litigation | No Comments »
Friday, December 16th, 2011
The Ministry of Justice has published its response to the consultation on the charter for coronial services.
In our response to the consultation, we raised concerns about the confidentiality of documents disclosed for an inquest. We were not alone in doing so and it seems this plea has been heard with the response confirming that the statement dealing with this issue will be strengthened.
The charter will not be limited to bereaved people and so will be applicable to all interested parties, including NHS Trusts and local authorities.
However, whilst stating its intended purpose is to set out nationwide standards, emphasis is placed on the fact the charter is voluntary, begging the question whether those standards will truly be consistent.
The final charter will be published in early 2012 and it remains to be seen how much of a difference it will make. After the Government abandoned wholesale changes to the coronial system, one cannot help but feel that it is another opportunity missed.
Posted by Mark Barnett, who specialises in clinical negligence; health law; responding to general health law queries including judicial reviews, consent, confidentiality and the Mental Health Act.
Mark Barnett
0121 237 3942
mbarnett@brownejacobson.com
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Rating: 4.0/10 (3 votes cast)
Tags: coroner's charter, inquests, Ministry of Justice
Posted in Health, Local Authorities, NHS | No Comments »
Thursday, December 15th, 2011
Today, Advocate General Mengozzi delivered his opinion to the Court of Justice of the European Union (CJEU) on some “short” and “simple” questions referred to the CJEU by the English Court of Appeal in the case of Football Dataco Ltd and Ors v Yahoo! UK Ltd.
The Opinion relates to the scope of copyright protection for databases. The Opinion states that a database, including the likes of football fixture lists and TV listings, can only be protected by copyright if it is an original intellectual creation of its author. Any creative effort in determining the elements of the database is a data creation activity and so does not count.
AG Mengozzi’s Opinion, if followed by the CJEU, will be a blow to the creators of sporting fixture lists and similar databases. No matter how much creative effort goes into the difficult task of creating a set of sporting fixtures, copyright in the database will only subsist if the presentation of the database is also in some way creative.
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: advocate general, CJEU, Copyright Designs and Patents Act, court of justice, football fixtures, Intellectual Property, patent infringement, patent protection, premiership football games, Yahoo
Posted in Brands, Intellectual Property | No Comments »
Thursday, December 15th, 2011
A government commissioned independent review has suggested the introduction of a new “Master Teaching Standard” for more experienced staff. This would see the current system of rewards and standards replaced with a single “Master Teacher Standard”.
A clear set of minimum standards would be set out which would highlight any teachers that are underperforming. To attain the new “Master Teacher” grade, teachers would have to meet five new standards that require high performing teachers to have wide-ranging knowledge of their specialism, command of the classroom, excellent planning and organisational skills, amongst others.
The aim of these prospective changes is to improve teaching standards in schools to attract the very best teachers to the profession, with promotions and pay benefits. This proposal has divided opinions, especially the potential alienation of primary teachers where a specialist subject is required. The government will now consider how the suggestions may be implemented.
Laura Richards
0115 976 6249
lrichards@brownejacobson.com
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Tags: Department for Education, Education, master teaching standard, primary education, teachers, teaching standards
Posted in Education | No Comments »
Thursday, December 15th, 2011
Pupil premium is set to increase by £112 per pupil-rising from £488 to £600. Further, at present, the Pupil premium only applies to children who currently receive Free School Meals (FSM). This will be extended to anyone who has been registered for FSM in the past six years. An additional half a million disadvantaged children are set to benefit from these changes.
The Pupil premium targets inequality by ensuring pupils from disadvantaged backgrounds, are on an equal footing to pupils from less deprived families. Research shows children eligible for FSM have consistently lower education achievement in comparison to pupils who have never been entitled to this support. Schools will be held accountable for how they use the PP and will be expected to show how the use of this scheme has impacted on school achievement.
Laura Richards
0115 976 6249
lrichards@brownejacobson.com
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Tags: child poverty, Department for Education, disadvantaged children, Education, Free school meals, FSM, pupil premium
Posted in Education | No Comments »
Wednesday, December 14th, 2011
The scale of the challenge facing Government plans to reduce the claims culture is becoming increasingly clear as the Legal Aid Sentencing and Punishment of Offenders Bill progresses through parliament.
Within the Lords, amendments have been proposed, which would have the effect of taking the teeth out of the CFA and ATE provisions. These include allowing unions to continue funding claims on the current basis and potentially unachievable obligations on the Lord Chancellor to be satisfied before the provisions come into effect.
At the same time, businesses affected by the Act are beginning to announce their plans to use alternative business structures (ABS) to circumvent a referral fees ban. The latest reports relate to Admiral insurance, but it is likely that many others are weighing their options.
These moves are not unexpected. The question now is whether industry’s ability to outmanoeuvre the Bill, coupled with sufficiently coordinated opposition in the Lords will force a Government re-think.
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: 5.5/10 (2 votes cast)
Tags: admiral, alternative business structures, ate, cfa, insurance, legal aid sentencing, punishment of offenders bill
Posted in Insurance | No Comments »
Wednesday, December 14th, 2011
Following the government announcing its intention to introduce fees in employment tribunals, today the Ministry of Justice has opened a consultation, inviting tribunal users to comment on the way those fees will be structured. The two options for consideration are:
- an initial fee of £150-£250 to bring a claim, with an additional fee of £250-1,250 if it goes to hearing, with no limit on the maximum award,or
- a single fee of £200-600 and a £30,000 limit on the maximum award (with the option to pay an additional £1,750 if an award over £30,000 is sought)
Last year the tribunal system cost the taxpayer £84 million to run. The primary aim of the fee is to ensure claimants make a contribution towards this cost. From an employer’s perspective, however, this should also discourage claimants from bringing claims and reduce their expectations of the maximum award that they may obtain if successful. This in turn should assist employers in recruiting without fear of such claims being brought.
Posted by Hayley Prescott, who specialises in employment law, both contentious and non-contentious, including tribunal claims, unfair dismissal, redundancy, policies and procedures, compromise agreements, contractual issues and general advisory work.
Hayley Prescott
0115 976 6116
hprescott@brownejacobson.com
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Rating: 8.5/10 (2 votes cast)
Tags: costs, employment, employment tribunal fees, government, Ministry of Justice
Posted in Employment | No Comments »
Wednesday, December 14th, 2011
Registration is now open for the Licensing Executives Society International (LESi) annual conference from 1 to 4 April 2012.
Delegates from the global licensing world will visit Auckland, New Zealand, to consider the potential for commercialisation of innovation in fighting threats such as over-population and environmental destruction; areas that those involved in licensing will be aware are of increasing importance as there is a greater focus globally on improvements to environmental stability as a method of boosting the economy.
Those keen to ensure their place at this excellent networking opportunity can follow this link: http://www.lesi2012.org/home.aspx
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Tags: commercialisation, economy, environmental, global licensing, LESi, licensing, over population
Posted in Waste & Environmental | No Comments »
