Archive for February, 2012
Wednesday, February 29th, 2012
Today sees the publication of a report by the Commission on Improving Dignity in Care for Older People. The media coverage is misleading. It says this report is another jeremiad on elderly care in this country. Actually it is nothing of the sort. It looks to the future, and suggests ways to improve care. Rather than being stentorian, the report asks for feedback.
Such skewed coverage by the media is unhelpful. While it backs the report’s suggestion that staff need to be more talented at caring, and better skilled, its portrayal of the caring profession as an unattractive, thankless blame game will surely turn good people away.
Caring is a difficult job. Few people can do it really well. Those at the front-line of service delivery need our encouragement and support to make the improvements which we would all like to see.
Kate Bear
0115 976 6104
kbear@brownejacobson.com
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Rating: 9.0/10 (2 votes cast)
Tags: care, caring, compassion, dignity, older people, report, Social Care
Posted in Social Care | No Comments »
Wednesday, February 29th, 2012
In publishing its response to the ‘Solving Disputes’ Consultation, the Government confirmed its intention to extend the existing low value RTA injury claims scheme to encompass higher value cases and also employers and public liability claims.
Today Jonathan Djanogley issued a letter to a number of stakeholders, including Browne Jacobson, seeking further information regarding extension of the scheme such as statistics relating to fixed fees, views on procedure and technical issues in relation to the online portal.
Under existing proposals, the process has the potential to handle in the region of 80 – 90% of injury claims. For many liability insurers, the fixed fees will account for the majority of their claims costs spend. It is therefore crucial that any extension of the process is properly planned and implemented.
Browne Jacobson will be working with its clients to prepare a response by the May deadline.
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: 10.0/10 (1 vote cast)
Tags: employers and public liability, government, james arrowsmith, Jonathan Djanogley, RTA Claims
Posted in Employers & Public Liability, Insurance | No Comments »
Tuesday, February 28th, 2012
A horse rider has lost her case in the Court of Appeal against the owner of a horse that bucked violently causing her to be kicked in the face after she was thrown to the ground.
The court ruled that the claimant voluntarily accepted the risk that the horse could buck and so therefore the defence to liability under section 5(2) of the Animals Act 1971 was engaged. It is irrelevant that the horse bucked more violently than had been anticipated. The claimant cannot have consented to bucking but not violent bucking.
This decision follows a recent stream of similar cases where defendants have been found not liable in circumstances whereby the claimant proceeds to engage with the animal knowing of the risk which subsequently eventuates.
With this in mind it is imperative to assess both the knowledge of the claimant in relation to the relevant characteristic of the animal concerned as well as the defendant when faced with an Animals Act claim.
Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Court of Appeal, insurance, personal injury, section 5(2) of the animals act 1971
Posted in Insurance | 2 Comments »
Tuesday, February 28th, 2012
On Saturday Apple suspended “push” notifications for its iCloud and MobileMe services in Germany. These allow consumers to receive updates from sources they subscribe to, often through downloading apps. The suspension follows a court ruling that Apple’s push technology infringes a Motorola patent originally used in pagers.
This is the latest skirmish in the ongoing patent litigation battle between a number of the biggest names in communications technology. Last week a Munich Court ordered Motorola to cease using the “slide to unlock” feature on all its future phones, after Apple successfully claimed a patent infringement by Motorola.
Phone companies place huge emphasis on ‘usability’, so court orders that prevent access to certain functions will be unsettling. Customers are unlikely to miss push notices much and will no doubt cope with whatever replaces “slide to unlock”. However, the patent disputes are likely to rumble on and customers will start to take notice if new phones miss functions they believe should come as standard.
Dave Drew
0115 976 6226
ddrew@brownejacobson.com
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Tags: Apple, apps, court ruling, Germany, icloud, mobileme, Motorola, notification, patent infringement, patent litigation, push, suspend, updates
Posted in Commercial Litigation, Intellectual Property | No Comments »
Monday, February 27th, 2012
In PGF II SA v OMFS Company I Limited the claimant landlord issued proceedings against the defendant tenant in relation to breaches of repairing covenants.
On 10 January 2011, the claimant accepted a Part 36 offer of the Civil Procedure Rules made on 11 April 2011.
In determining costs the court decided to depart from the presumption that the claimant would be liable for the defendant’s costs from the expiration of 21 days (ie 3 May 2011) from the date of the Part 36 offer to the date of acceptance on the grounds it was unreasonable for the defendant not to agree to mediate. The court therefore made no order for costs for the period from 3 May 2011 onwards.
This is a useful reminder to all litigators of the importance of considering the useful alternative dispute resolution, and in particular the sanctions which may be imposed by the court when a party ignores a request, or unreasonably refuses to mediate.
Posted by Kate Andrews, who specialises in advisory and dispute resolution relating to contentious property litigation; landlord and tenant disputes, contractual and development disputes, also property insolvency and rights of light issues
Kate Andrews
0207 337 1024
kandrews@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: breaches of repairing covenants, civil procedure rules, dispute resolution, landlord, Part 36, tenants
Posted in Commercial dispute resolution, Property | No Comments »
Monday, February 27th, 2012
Below is the update I promised in my previous blog on this case and I’ve also written a fuller summary.
Judgement was given on Friday, 24 February. The 67 year old claimant complained that he was sexually abused by the adult son (a retired Anglican priest) of the warden and matron of a Children’s Society home in 1959. The priest’s estate settled the claim for £10,000 but the claim against the Society proceeded on the basis that it was vicariously liable for the action of the son. The judge found the evidence had been so badly affected by time that it was impossible to have a fair trial. He also dismissed the argument that the society was liable for the action of the abuser.
However the judge made it clear that the test for vicarious liability is fact sensitive. Each case will depend on its own fact, and our experience suggests that the lawyers involved in this case are up for pushing those boundaries.
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 (2 votes cast)
Tags: abuser, childrens society home, claim, evidence, judgement, lawyers, retired anglican priest, sexually abused, vicarious liability
Posted in Social Care | No Comments »
Friday, February 24th, 2012
Cardiff council has found £250,000 to hire 5 agency staff and will be employing 8 more permanent staff in April.
At the same time, the Public have reported “palpable shock at the realities of some people’s lives” as reflected in the BBC documentary Protecting Our Children. My own view is that this documentary provides a fair summary of the types of cases social workers currently have to deal with. It can be seen that they have to work with challenging individuals and carry out a terribly delicate balancing exercise to decide whether its best to support parents and their families to look after children at home or whether that is simply not possible. I expect that programs such as these help the public understand how much time and care needs to be taken by social workers working with vulnerable children, and why allocation of resources such as these that have been found by Cardiff council is so important.
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: 9.3/10 (3 votes cast)
Tags: BBC, cardiff council, children, documentary, Education, hire, social workers, staff, vulnerable children
Posted in Social Care | No Comments »
Friday, February 24th, 2012
Government plans to launch a national adoption plan reform in the current system has met with mixed views. Last month it was announced that a record number of care applications had been issued in the family courts. If Michael Gove’s proposals that:-
- social workers should intervene “early and energetically” more readily, and
- adoption support is beefed up
are to be effected then that has an impact on resources. I wonder whether it is sensible to be imposing new performance indicators at the same time. Precious resources might better be applied to implementing the new adoption system rather than demonstrating how regional variation makes improvement in social care difficult to measure.
Remember the courts have to be convinced that a child should be the subject of a Care Order. Parents who successfully resist such applications may simply refuse to work with social workers into the future, feeling themselves exonerated by the court, and thereby exposing their children to avoidable risk.
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 (2 votes cast)
Tags: adoption, adoption system, care, family courts, government, Michael Gove, Social Care
Posted in Social Care | No Comments »
Friday, February 24th, 2012
September 2011 saw youth unemployment reach over 1 million, and with the latest gloomy figures of those Not in Employment, Education or Training (Neet), some commentators have described the youth of today as a ‘lost generation’.
Latest figures show 178,000 young people were classed as Neet, which recent press reports suggest is being blamed on the scrapping of the EMA. This is one percent higher than in 2010, and the worst since records began in 2000.
The government has fought back stating that £1 billion is being spent tackling the issue. Earlier this week Nick Clegg announced a new programme for 16 and 17 years olds aiming at getting more people involved in apprenticeships and providing skills employers are looking for.
The plan is for organisations with a track record of supporting young people to bid for contracts potentially worth up to £2,200 per individual. However, concerns have been raised that the scheme does not go far enough and success remains to be seen.
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
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Rating: 9.0/10 (1 vote cast)
Tags: apprenticeships, further education, government, neet, Nick Clegg, not in employment education or training, unemployment
Posted in Further Education | No Comments »
Thursday, February 23rd, 2012
The Cabinet Office has issued guidance on the use of pre-qualification questionnaires (PQQs) by central government departments intended to improve access for small and medium enterprises (SMEs). SMEs are concerned that the administrative burdens of complying with public sector procurement requirements have a disproportionate impact on smaller businesses, which this guidance is intended to address.
The guidance states that PQQs must not be used as a pre-tender selection when the value of the goods, services or works falls below the EU procurement thresholds.
Whilst the removal of the PQQ stage will make life easier for SMEs wishing to submit tenders, it may give tenderers false hope if they are unlikely to be successful at the invitation to tender stage. It will also increase the workload of government departments by increasing the number of tenders they are required to assess.
Whilst this guidance only applies to central government departments it will be interesting to see whether local authorities wishing to improve SME access will follow suit.
Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: eu procurement directives, PQQ's, Pre-qualification questionnaires, Procurement, Public Sector, SME's
Posted in Procurement, Public Sector | No Comments »
Thursday, February 23rd, 2012
In November 2011 Nick Clegg announced plans to address unemployment. It was launched partly due to concerns over youth unemployment reaching over 1 million.
The voluntary scheme lets those on unemployment benefit work for a period of up to 8 weeks without losing payments. Controversy centres around the lack of additional payment, or offer of a permanent role and the threat that participants potentially risk losing their benefits if they do not complete the scheme.
The accusation is that businesses are using young workers as cheap labour. Now, several large retail sector players have pulled out, whilst Tesco have written to the DWP to query whether the risk of losing benefits should be removed so as to avoid any confusion over whether the scheme is voluntary or not.
The government has been quick to defend the scheme, stating that 50% of those on the scheme had found permanent employment, but as public pressure increases and more businesses pull out, the future of the scheme remains to be seen…
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
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Rating: 10.0/10 (2 votes cast)
Tags: employment, Nick Clegg, Retail, Tesco, unemployment, voluntary work, work benefits, youth unemployment
Posted in Employment, Retail | No Comments »
Wednesday, February 22nd, 2012
In the latest chapter in the long running telecoms patent dispute between Nokia and IPCom, the English High Court has ruled that IPCom’s European patent (UK), which related to the handover of mobile phones between different base stations (eg when the mobile user is on the move), was invalid as originally granted but allowed IPCom to amend its claims, so that the patent remains on the register.
Importantly for Nokia and other would-be licensees, the court found that the patent (even as amended) was not essential to the GSM, UMTS or LTE telecoms industry standards, so a licence of the patent is not required in order to comply with those standards.
Nokia will no doubt use this decision and others like it as leverage in future licence negotiations with IPCom. A victory for the licensee? Maybe, but the portfolio of patents owned and licensed by IPCom remains substantial, as highlighted on its website. Perhaps a convenience based licence still beckons….
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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Rating: 0.0/10 (0 votes cast)
Tags: Copyright and Patents Act, High Court, Intellectual Property, IPCom, LTE telecoms industry standards, mobile phone technology, Nokia, patent protection, Patents
Posted in Commercial Litigation, Intellectual Property | No Comments »
Wednesday, February 22nd, 2012
In the first case of its kind in the High Court, a judge has granted permission for proceedings to be served by Facebook.
The case concerns a claim against a former employee of a firm of brokers alleged to have overcharged commission to clients. Proceedings were served at his last known address but not knowing if he still lived there, permission was also sought to do so via Facebook. The court heard evidence that the employee was known to access his Facebook account and so granted permission for service by this alternative method.
The Court has power under CPR Part 6 to grant permission to serve within the jurisdiction by an alternative method “where there is good reason” (PD6.15).
This will undoubtedly open the doors to similar applications being made to serve proceedings via social networks on missing defendants at all levels of the courts. It begs the question however, how do you enforce against someone who exists only in the virtual world?
Posted by Steven Conway, specialising in: defence of claims on behalf ofinsurers, local and public authorities, in particular employers’ and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 9.0/10 (7 votes cast)
Tags: AKO Capital LLP, AKO Master Fund, Civil Procedure, Fabio de Biase, Facebook, High Court, litigation, service of legal proceedings, steven conway, TFS Derivatives
Posted in Employers & Public Liability, Insurance, Litigation, Uncategorized | No Comments »
Tuesday, February 21st, 2012
The UK Government has launched a public consultation which has confirmed its intention to abolish distress for rent (recovery of arrears of rent by seizure of the tenant’s goods) and replace it with a modern regime to recover commercial rent arrears. This is good news for tenants who see the current archaic law as unfair and open to abuse. Conversely, this may not be good news for landlords who make use of the self help remedy.
Either way there has to be a question mark over the political will to make this change. The legislation implementing these changes has been delayed since 2007 and the government’s response on this further consultation is not due until October of this year.
Posted by Kate Andrews, who specialises in: advisory and dispute resolution relating to contentious property litigation; landlord and tenant disputes, contractual and development disputes, also property insolvency and rights of light issues.
Kate Andrews
0207 337 1024
kandrews@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: commercial rent, distress for rent, government, insolvency, Kate Andrews, landlords, property litigation, rent arrears
Posted in Commercial dispute resolution, Insurance, Property | No Comments »
Tuesday, February 21st, 2012
A survey from PricewaterhouseCoopers has revealed that there were more retail openings than closures in the West Midlands in 2011. This growth is from charity shops, pawnbrokers and supermarkets.
Recently, we highlighted that some landlords are paying charities to take on empty units to avoid rates.
Whilst news that the West Midlands seems to be holding its own is heartening in this difficult climate, the survey makes it clear that retailers are having to rethink their strategies and that some retailers are faring better than others.
Claire Gay
0115 976 6145
cgay@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Charities, high streets, landlords, Pawnbrokers, PricewaterhouseCooper, Retail, retail openings, supermarkets
Posted in Charities, Retail | No Comments »
Monday, February 20th, 2012
Three Councils have recently been handed significant fines by the Information Commissioners Office (ICO) for serious breaches of the Data Protection Act 1998.
Whilst the Information Commissioner and the Department for Communities and Local Government hoped that the ICO’s powers to use monetary penalties would need to be used “only sparingly” the total fines imposed since May 2010 exceed £1M. These latest cases highlight just how serious the ICO takes breaches in the safeguarding arena.
To prevent being caught out it is clear that robust systems need to be put in place to ensure that sensitive information is properly managed and carefully disseminated. The ICO emphasized procedures and training as being fundamental to any Data Protection system.
I wonder what the ICO would have done if the Councils had demonstrated effective systems and shown that these employees had received training on those systems, and the loss was simply a matter of bad luck.
Posted by Ceri-Sian Williams, who specialises in defending claims brought against social services
Ceri-Sian Williams
0115 976 6563
cwilliams@brownejacobson.com
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Rating: 3.0/10 (1 vote cast)
Tags: Data Protection, Data Protection Act, Data Punishment Act, Department for Communities, information commissioners office, safeguarding, social services
Posted in Data Protection, Social Care | No Comments »
Friday, February 17th, 2012
Non solicitation clauses are commonplace in senior employees’ employment contracts. But how can an employer show that an employee has ‘solicited’ its clients? In the case of Towry EJ Limited v Barry Bennett and others, the employer was not able to show that their former clients had moved to a former employee’s current business due to any request, persuasion or encouragement by that former employee. Solicitation could not be inferred from the fact that a “tidal wave” of clients had moved to the former employee’s business, even though that might well look suspicious.
With the burden of proof lying squarely with the employer in trying to enforce restrictive covenants, careful consideration needs to be given to their drafting at the outset. A non-dealing clause may have proved more effective in this case with the employee being placed on garden leave to prevent them from having contact with key clients during their notice period.
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: covenants, employment, employment contracts, Towry EJ Limited v Barry Bennett
Posted in Employment | No Comments »
Friday, February 17th, 2012
September 2011 saw the launch of the first 24 free schools with a further 72 set to open in September 2012. The DfE has confirmed that groups wanting to open mainstream, special and alternative provision free schools in September 2013 can now submit their detailed plans.
Free schools are proving very popular with parents with 15 of the first 24 being oversubscribed even before opening. There seems to be a gap in the education provision market that free schools have catered for, particularly for those young people in deprived areas, offering them a greater chance of establishing themselves in an increasingly competitive and difficult economical climate.
Free schools are established from scratch, therefore differing from the academies programme which requires schools to convert with the same characteristics that they have as a maintained school. However, like academies, the key principle is greater freedoms, for example the ability to vary the school day and the curriculum.
Laura Richards
0115 908 4886
lrichards@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: academies, curriculum, DFE, Education, free schools, schools
Posted in Education | No Comments »
Friday, February 17th, 2012
Jones Lang LaSalle recently estimated that 50% of retail leases are to expire by 2015. Retailers will be able to pick and choose whether they want to stay or go and, in a market with high vacancies, will be able to demand extremely favourable terms from their landlords. Landlords may then have little choice but to concede to the demands or face a vacant unit. However there are those who are suggesting that the future for the High Street does not necessarily lie in retail. With a huge increase in online shopping the call is for shopping areas with an experience, catering for cafes, events and for things you cannot or prefer not to do online or even conversion to residential use. If vacancies are to increase landlords may be faced with little alternative but to look for a non-retail use. The question is, following the Mary Portas’ review, how will the government help?
Claire Gay
0115 976 6145
cgay@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: high street, Jones Lang LaSalle, landlords, leasing, Mary Potas, online shopping, reatil
Posted in Property, Retail | No Comments »
Friday, February 17th, 2012
The Copyright Tribunal has determined that the Newspaper Licensing Agency (NLA) must cut licence fees charged to end users of news monitoring services who receive emails containing online news clippings.
Last year, in an action brought by the NLA against Meltwater, a media monitoring business, the Court of Appeal upheld the High Court’s decision that PR agencies infringed newspaper copyright when they used Meltwater’s news aggregation service which provided them with emails containing news items. Following the Court of Appeal’s decision, the Tribunal was ruling on the NLA’s licensing structure, including the rates charged by the NLA to both the media monitoring service providers and to the end users of such services. The Tribunal approved the NLA licensing structure but, whilst it agreed to the NLA’s variable licence fee rates for media monitoring service providers, it ordered that the rate for end users should be significantly reduced.
The decision seems a fair one and has been welcomed by both parties: the NLA’s licensing regime remains intact with newspapers being remunerated for their content but at a rate which is equitable and proportionate to the level and type of content being provided.
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: copyright tribunual, Intellectual Property, media, media sharing, Meltwater, newspaper copyright, Newspaper Licensing Agency, PR Agencies, press cuttings
Posted in Commercial Litigation, Intellectual Property | No Comments »
