http://www.ashfords.co.uk/ Ashfords News, latest 20 items Sat, 04 Feb 2012 17:42:36 +0000 en http://www.ashfords.co.uk/news/The+Mayoral+Community+Infrastructure+Levy+'28'22MCIL'22'29+and+Crossrail+in+London http://www.ashfords.co.uk/news/The+Mayoral+Community+Infrastructure+Levy+'28'22MCIL'22'29+and+Crossrail+in+London Thu, 02 Feb 2012 12:30:00 +0000 The Mayor of London is seeking to raise £300m of the £14.5bn overall cost for the Crossrail project through contributions from the Mayoral Community Infrastructure Levy ("MCIL"). Developers will pay these contributions in addition to the Community Infrastructure Levy ("CIL") that the individual London Boroughs will be introducing. The Mayor has come one step closer to having the MCIL in London approved as the charging schedule was approved by an independent examiner.
The Mayor of London is seeking to raise £300m of the £14.5bn overall cost for the Crossrail project through contributions from the Mayoral Community Infrastructure Levy ("MCIL"). Developers will pay these contributions in addition to the Community Infrastructure Levy ("CIL") that the individual London Boroughs will be introducing. The Mayor has come one step closer to having the MCIL in London approved as the charging schedule was approved by an independent examiner.




MCIL in London
MCIL will be charged per square metre of development. The rate differs in the three proposed charging bands, which are based on the average house prices in each borough.

The rate in Zone 1 is set at £50 per m sq and will apply to all development in the London Boroughs of Camden, City of London, City of Westminster, Hammersmith and Fulham, Islington, Kensington and Chelsea, Richmond-upon-Thames and Wandsworth.

The rate in Zone 2 is set at £35 per m sq and will apply to all development in the London Boroughs of Barnet, Brent, Bromley, Ealing, Greenwich, Hackney, Haringey, Harrow, Hillingdon, Hounslow, Kingston upon Thames, Lambeth, Lewisham, Merton, Redbridge, Southwark and Tower Hamlets.

The rate in Zone 3 is set at £20 per m sq and will apply to all development in the London Boroughs of Barking and Dagenham, Bexley, Croydon, Enfield, Havering, Newham, Sutton and Waltham Forest.

Nil rates will apply for development used for the provision of education and medical services.







The Examiner's Report
Despite approving the scheme, the examiner's report did express some concerns about the impact of the proposed implementation of MCIL in London.

There may be certain boroughs who are disadvantaged by their allocation to a certain charging band. Wandsworth in particular was singled out as a borough that may be better placed in the second charging band, but the examiner stopped short of making a recommendation.

The report also considered the viability of the proposed charging rates. The report concluded that the anticipated 1% increase in the value of completed residential units might put some marginal schemes at risk, but considered the increase as not 'intolerable'.

Following the examiner's approval the Mayor will now consider a report from Greater London Authority officers, which will recommend that MCIL charging commences on 1 April 2012.

More information about the Mayor of London's proposals is available here.




Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.


]]> http://www.ashfords.co.uk/news/Brands+Bulletin+-+February+2012 http://www.ashfords.co.uk/news/Brands+Bulletin+-+February+2012 Thu, 02 Feb 2012 09:20:00 +0000

Registered trade mark infringement and an account of profits - a rare beast indeed


If a defendant is found by an English Court to have infringed a UK or Community registered trade mark then the owner of the trade mark can elect either to claim damages for the loss it has suffered or an account of the profits enjoyed by the defendant as a result of the infringement. The trade mark owner is entitled to choose whichever of the two remedies it pr[...]]]>

Registered trade mark infringement and an account of profits - a rare beast indeed


If a defendant is found by an English Court to have infringed a UK or Community registered trade mark then the owner of the trade mark can elect either to claim damages for the loss it has suffered or an account of the profits enjoyed by the defendant as a result of the infringement. The trade mark owner is entitled to choose whichever of the two remedies it prefers and will usually choose the one that it believes will result in it obtaining the largest sum of money.

Most trade mark owners usually elect to claim damages, but every now and again a case comes along where a claimant elects for the defendant to account to him for the profits the defendant made.  This happened in the recent case of Hollister Inc. & Anor v Medik Ostomy Supplies Limited [2011] EWPCC 40.    

In this case, the defendant admitted registered trade mark infringement.  It had engaged in the parallel importing of the trade mark owner's goods.  In particular, it had repackaged and relabelled the trade mark owner's genuine trade marked goods, but had not given the trade mark owner prior notice of this before reselling the said goods, which was a clear breach of EU trade mark law. The trade mark owner elected to pursue an account of the defendant's profits enjoyed as a result of these acts of trade mark infringement.

The judge hearing the case summarised the legal principles that apply to accounts of profits.  In particular, he made clear that the focus is on the profits made by the infringer and not the damage or loss suffered by the trade mark owner.  The Court is asked to determine what profits the defendant made as a result of its wrongful acts.  It is no answer to say that the defendant could have made the same profits by following an alternative, non-infringing course.  Equally, a claimant must take a defendant as he finds him and cannot say that the defendant could and should have generated higher profits.  Further, the claimant is only entitled to net profits, with relevant costs being deducted from gross profits. Costs that relate to both infringing and non-infringing activities are to be apportioned between the two.

The judge then decided on the proportion of the defendant's net profits that should be paid to the trade mark owner, bearing in mind the guidance of existing Community trade mark law.  After taking into consideration:




the fact that the trade mark owner did not actually suffer any damage of the kind that is relevant as a result of the failure by the defendant to give the trade mark owner prior notice that the defendant had repackaged and relabelled the trade mark owner's genuine trade marked goods, before reselling the said goods;
the fact that the trade mark owner knew all along that the defendant had repackaged and relabelled the trade mark owner's genuine trade marked goods; and
the fact that the Court must award a sum that is both an effective remedy and also a sufficient deterrent to ensure that traders do give the required notice
the judge decided to award to the trade mark owner half of the defendant's profits generated as a result of the defendant's acts of trade mark infringement.

The case is a useful reminder that, in some circumstances, a trade mark owner may do better to elect for an account of profits, rather than an inquiry as to damages.  By way of further illustration, in the case of Hotel Cipriani SRL & Ors v Cipriani (Grosvenor Street) Ltd & Ors [2010] EWHC 628 (Ch) the trade mark owner in question elected for an account of the defendant's profits, which resulted in an award to the trade mark owner of in excess of £6.5m.  It is unlikely that an award of damages would have produced such a high figure.     

If you wish to discuss this email, or any other brand or trade mark issue, please contact Carl Steele, Head of Trade Marks, or feel free to contact any of Ashfords' IP Partners.   

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.
]]> http://www.ashfords.co.uk/news/Brands+Bulletin+-+January+2012+Stop+Press'21 http://www.ashfords.co.uk/news/Brands+Bulletin+-+January+2012+Stop+Press'21 Tue, 31 Jan 2012 16:55:00 +0000

Stop Press!

Today, the Court of Appeal handed down its judgment in the case of Specsavers v Asda [2012] EWCA Civ 24.

Readers may recall that, at first instance, Specsavers successfully sued Asda for registered trade mark infringement.  The judge held that Asda had adopted the strapline "Be a real spec saver at ASDA" in order to deliberately trade off Specsavers' reputation for value for money.  Further, the use made of the [...]]]>

Stop Press!

Today, the Court of Appeal handed down its judgment in the case of Specsavers v Asda [2012] EWCA Civ 24.

Readers may recall that, at first instance, Specsavers successfully sued Asda for registered trade mark infringement.  The judge held that Asda had adopted the strapline "Be a real spec saver at ASDA" in order to deliberately trade off Specsavers' reputation for value for money.  Further, the use made of the strapline qualified as infringement pursuant to Article 9(1) (c) of the Regulation governing Community trade marks.

However, he rejected Specsavers' other claims for infringement, including that use of the strapline "Spec savings at ASDA" infringed Specsavers' trade marks and that use of the name ASDA, in a logo format similar to that used by Specsavers, infringed the latter's trade marks.  

Specsavers appealed the judge's rejection of its unsuccessful claims and ASDA cross appealed against the finding of infringement by the first strapline.

The Court of Appeal decided that Asda adopted both of the straplines "Be a real spec saver at ASDA" and "Spec savings at ASDA" in order to deliberately trade off Specsavers' reputation for value for money.  Further, the use made of the straplines qualified as infringement pursuant to Article 9(1) (c) of the Regulation governing Community trade marks.  In addition, its use of the name ASDA, in a logo format similar to that used by Specsavers, also infringed the latter's logo trade marks, particularly as it formed part of a composite campaign where ASDA deliberately looked to trade off Specsavers' reputation for value for money.  

Key legal points that come out of the Court of Appeal's decision include:




In a registered trade mark case, when assessing the likelihood of confusion arising from the use of a sign, a Court must take into account all the circumstances of that use that are likely to operate on an average consumer's mind when considering the sign and the impression it is likely to make on him.  The sign is not to be stripped of its context.  Thus, a Court must not look only at the two signs in issue and nothing else.  It must consider the context and circumstances in which use has been made of the allegedly infringing sign.  [Does this mean that the test for infringement, pursuant to Article 9(1) (b) of the Regulation, is now very similar to when a Court is determining whether there has been a 'misrepresentation' in a passing-off case?];
European trade mark law is not clear on the issue of whether a mark registered in black and white (without any formal limitation of colour) is registered in respect of all colours and, thus, if it is used extensively in a particular colour by the trade mark owner whether this fact can be taken into consideration when assessing trade mark infringement by a defendant.  The Court of Appeal thus decided to refer relevant questions to the Court of Justice;
In a registered trade mark infringement case a Court can take into consideration the intention of a defendant, when using a sign, of looking to associate itself with the values of another registered trade mark owner's mark; and 
European trade mark law is not clear as to whether use of a graphic device mark and a word mark together (both of which are separately registered as trade marks) is sufficient to qualify as use of each of the marks separately - and thus prevents them being revoked on non use grounds.  The Court of Appeal thus decided to refer relevant questions to the Court of Justice. 

Overall, it may be argued that the case asks more questions than it answers.  We will now have to wait for the guidance of the Court Of Justice before things become clearer.


If you wish to discuss this email, or any other brand or trade mark issue, please contact Carl Steele, Head of Trade Marks, or feel free to contact any of Ashfords' IP Partners. 


Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.
 

]]> http://www.ashfords.co.uk/news/Exeter+City+Council+to+consult+on+Community+Infrastructure+Levy http://www.ashfords.co.uk/news/Exeter+City+Council+to+consult+on+Community+Infrastructure+Levy Mon, 30 Jan 2012 15:10:00 +0000

Exeter City Council has announced a consultation on proposals to introduce the Community Infrastructure Levy ("CIL").

The CIL is a new form of charge that allows local authorities to raise funds from developers undertaking new building projects in their area. The money collected will be used to help provide infrastructure that is needed as a result of development.

Exeter City Council are looking to consult on:



Exeter City Council has announced a consultation on proposals to introduce the Community Infrastructure Levy ("CIL").

The CIL is a new form of charge that allows local authorities to raise funds from developers undertaking new building projects in their area. The money collected will be used to help provide infrastructure that is needed as a result of development.

Exeter City Council are looking to consult on:




The Preliminary Draft Charging Schedule;
Introducing a CIL instalments policy and the form this could take;
Whether there are exceptional circumstances under which discretionary relief from CIL liability should be considered, and what these might be; and
Those infrastructure items that should be funded by CIL and those that should be left to section 106 planning obligations.
The consultation period will run until 3 February 2012.

If you are looking for help in responding to this consultation, please contact John Bosworth, head of the planning department, on 01392 333842.

]]> http://www.ashfords.co.uk/news/Cross+Border+Restructuring+and+Insolvency+Update+-+January+2012 http://www.ashfords.co.uk/news/Cross+Border+Restructuring+and+Insolvency+Update+-+January+2012 Fri, 27 Jan 2012 14:20:00 +0000






EC Insolvency Regulation restricts the operation of national laws

Further Guidance on COMI post Interedil

In Rastelli Davide e C. Snc v Jean-Charles Hidoux1, main insolvency proceedings were opened in France for a French company. The Liquidator applied under French laws to join an Italian registered company to the main proceedings, as the two companies had intermingled assets.

Fo[...]]]>






EC Insolvency Regulation restricts the operation of national laws

Further Guidance on COMI post Interedil

In Rastelli Davide e C. Snc v Jean-Charles Hidoux1, main insolvency proceedings were opened in France for a French company. The Liquidator applied under French laws to join an Italian registered company to the main proceedings, as the two companies had intermingled assets.

Following conflicting decisions in the courts below, the French Supreme Court referred the case to the CJEU. The CJEU determined that; (1) a court of a member state that has opened main proceedings can, under a rule of national law, join to those proceedings a second company whose registered office is in another member state, but only where the second company has its COMI in the first member state, and (2) Following the cases of Eurofood and Interedil, COMI must be identified by reference to criteria that are both objective and ascertainable by third parties, but the fact that assets were intermingled was insufficient.

There are now two decisions from the CJEU that attach greater importance to the place where the company has its central administration. The registered office presumption is undoubtedly weaker.

1 C-191/10, ECJ (1st Chamber) (15 December 2011)




Provisional Liquidators




UK case clarifies the test for the appointment of provisional liquidators

In the UK the appointment of a provisional liquidator under section 135 Insolvency Act 1986 is an interim measure between the presentation of a winding up petition and the winding up order. The primary reason for appointing a provisional liquidator is normally to ensure the preservation of the company's assets. In most cases, the appointment of a provisional liquidator causes the company to cease trading and is frequently terminal to it.  In Re A Company2 the power was described as the ‘nuclear weapon of the Companies Court’.  Given the seriousness of the measure, the threshold for the test for appointment has always been high. The old test was that a creditor had to prove that there was a prima facie case that a winding up order would be made and the court had to be satisfied, in the circumstances of the case, that it was right that a provisional liquidator should be appointed.

The first part of this test has now been changed by the Court of Appeal in Rochdale Drinks Distributors Ltd3. In order to appoint a provisional liquidator, a creditor must now demonstrate 'nothing less than he is likely to obtain a winding up order on the hearing of a petition.' The court also said that if a company chooses to oppose the application on the basis that there is a dispute as to the creditor's claim, it must prove that it has a good arguable case.

This decision is in contrast to a decision ten months earlier in the New Zealand High Court in NZ Mail Ltd v Exnzol Ltd4. In this case, the creditor was required to show a good prima facie case for liquidation and urgency, with real reasons for an interim appointment, such as jeopardy to the company's assets. However, the New Zealand High Court, in common with the Court of Appeal, also said that a without notice application for the appointment of an interim liquidator will not be successful unless 'special circumstances' can be shown, emphasising the need for evidential sufficiency.

2 (no 0070707 of 1996) [1997] 2 BClC 139, 142
3 [2011] EWCA (Civ) 1116
4 [2010] NZHC 1530



Updates from around the world

Australia

New legislation has been proposed by the Australian government that is designed to make directors personally liable for the debts of phoenix companies that are created using a similar name to an already failed company.

The UK has a similar provision in section 216 Insolvency Act 1986.  A director of a company in insolvent  liquidation is prohibited, subject to a few exceptions, from being a director of, or in any way concerned with the management or promotion of a limited company or a limited liability partnership with the same or similar name for a period of five years from the liquidation of the old company. If breached, the director faces imprisonment or a fine or both and/or is personally liable for the debts of the new company/limited liability partnership all the time s/he acts in breach of s.216. We wait to see if the Australian legislation will include similar provisions. The new legislation will also make directors personally liable for corporation tax debts and give the Australian Securities and Investments Commission the power to wind up companies.

Australia's national Personal Property Securities Register commences on 30 January 2012. On commencement of the PPS Register many security registers will be closed and existing registrations migrated to the PPS Register. This includes ASIC's Register of Company Charges. ASIC's final day for accepting and processing charge documents will be Friday 27 January 2012.

Scotland

A PKF report has predicted that an average of 25 Scottish businesses a week will be declared insolvent, equating to 1,300 throughout the year. The latest insolvency figures show that 361 companies in Scotland went bust in the third quarter of 2011, the highest ever recorded and a 46.2% increase compared with the third quarter of 2010. The report also predicted an increase in Scottish personal insolvencies. It predicts that 20,000 people will be declared insolvent in 2012 based on rising bankruptcy and trust deed figures over the first three quarters of 2011. It also said that affluent Scots would be affected.

Ireland & Northern Ireland

The High Court in Northern Ireland has annulled business tycoon Sean Quinn's bankruptcy secured in Northern Ireland in November. The Irish Bank Resolution Corporation ("IBRC"), Quinn's largest creditor, successfully argued that his COMI was in fact in the Republic of Ireland. Justice Deeny found that a lease provided by Mr Quinn for an office in an industrial estate in Northern Ireland was likely to have been drawn up to "bolster" his case for UK bankruptcy. On Monday 16 January 2012, Mr Quinn was declared bankrupt in the Republic of Ireland, where his bankruptcy could last up to 12 years, in contrast to the UK where the norm is 12 months.

The Irish Government has published new legislation reforming its personal insolvency laws. The legislation is designed to tackle a growing mortgage debt crisis and curb “bankruptcy tourism” to the UK. The reforms include a reduction of the bankruptcy discharge period from the current twelve years to three years and provisions enabling consumers on a case-by-case basis to write down mortgage debt while continuing to live in their homes.

USA

On 1 December 2011 the amended Bankruptcy Rule 2019 came into effect. The rule addresses disclosures required by co-operating creditors and equity holders. After an extensive public comment process, the rule has been amended to provide some clarification on the ambiguities of the former Rule 2019. The amendments include, among other things, broadening its scope by requiring disclosure from any entity, group or committee that consists of or represents multiple creditors or equity security holders that are (i) acting in concert to advance their common interests, and (ii) are not composed entirely of affiliates or insiders of one another.

India

The Companies Bill 2011 is making its way through India's legislative process. If passed, it will be the most comprehensive reform of India's company law since the Companies Act 1956. The Bill seeks to update the law in line with the best global practices by reforming the regulatory regime and introducing new concepts such as Corporate Social Responsibility, class action suits and a fixed term for independent directors.
Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.


Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.


]]> http://www.ashfords.co.uk/news/Should+I+Buy+a+Boat+Online'3F http://www.ashfords.co.uk/news/Should+I+Buy+a+Boat+Online'3F Fri, 27 Jan 2012 12:35:00 +0000

Purchasing a boat second hand can in itself be a tricky business with a number of pitfalls. The good news is that they can be minimised. In the current market there are plenty of bargains to be had and it is becoming more and more common to see fairly expensive boats for sale on internet auctions.

George Lloyd, an existing client, had owned a number of previous boats but having been out of the market for several years, he wanted to purchase a secon[...]]]>

Purchasing a boat second hand can in itself be a tricky business with a number of pitfalls. The good news is that they can be minimised. In the current market there are plenty of bargains to be had and it is becoming more and more common to see fairly expensive boats for sale on internet auctions.

George Lloyd, an existing client, had owned a number of previous boats but having been out of the market for several years, he wanted to purchase a second hand bargain that he and his family could appreciate.

He looked at a number of the boats for sale in the usual places but also searched on the internet.  Having compared prices, he saw a nice Fairline advertised on an internet auction site. It seemed to be in good condition and was being advertised due "to a family bereavement" at a reserve of more than a £30,000 below the market value

The advert seemed a good deal but the plain fact of the matter was that at the press of a button George was committing a considerable sum of money to purchase a picture of boat.

The law

When he consulted us, I advised him that generally, one of the benefits of buying anything on the internet is that you are covered by the Distance Selling Regulations 2000 and, under these, have the right to a seven day cooling off period. But this is not the case when buying on an internet auction site - the  Regulations simply do not apply and it is a case of "let the buyer beware."

Of more concern to George is that by clicking a button on an auction site he may have instantly purchased the boat.  He would have no subsequent right of survey, no contract, no deposit provisions, no proof of title, no warranties, inventory or proof of VAT payment.

Further, the status of a seller on a web auction, can in our experience, be called into question. Sellers may go to some length to describe their sale but the fact of the matter is that they usually try to sell as private individuals rather than in the course of a business.  Even if the seller has sold numerous items previously, he may well still consider that he is a private individual.  The importance of this is that the implied statutory rights that any purchaser has when buying from a retailer or manufacturer do not apply to a sale by an individual. The purchaser is then usually left with no implied rights under the Sale of Goods Act and the boat it is "sold as seen." - the old adage "let the buyer beware" applies.

The Outcome

George was advised to:

1.    Email or telephone to check the seller's identity and reasons for selling.  Has he has sold other items? Read his feedback. If he has sold several boats over the last couple of years he would be in some difficulty describing himself as a private seller.

2.    Request that a simple contract in standard form be drawn up - one that provides for warranties, description, a deposit, survey, inventory and so on. If a survey is not allowed, don't buy the boat;

3.    Ask the seller to email copies of the title and VAT documents in advance;

4.    Ask as many questions as possible about the boat's history and maintenance;

5.    Check whether the boat is registered and if so, obtain a transcript.

All these items are difficult to check on an internet auction.  However, they are essential even in the most basic purchase.  The seller may have a genuine reason for selling and wish to do so quickly but at the end of the day, it should be easy to establish his reasons and see documents.  Pay an agreed deposit to a neutral person and carry out speedy investigations.

In this case, the seller's reasons were indeed genuine. He was more than happy to allow a survey and basic contract in return for a deposit. The boat, documents and the seller were all satisfactory and ownership changed hands quickly.

Lessons Learned

The whole process can be carried out quickly and with the minimum of fuss but should not be carried out instantaneously. Treat it like a property auction. There are basic checks that can minimise the risk and these should not be bypassed. Internet sites are becoming increasingly common but tread with caution. If you are a seller, be prepared for such questions



First published in 'Motor Boat & Yachting – Europe's best motor boat magazine'. 


To buy an issue of the magazine, please go to: http://gb.zinio.com/browse/publications/index.jsp?productId=117652628


Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only.  We have no control over the content and accept no responsibility for them.





]]> http://www.ashfords.co.uk/news/South+West+concerts+to+raise+charity+cash http://www.ashfords.co.uk/news/South+West+concerts+to+raise+charity+cash Fri, 27 Jan 2012 12:25:00 +0000  


Charities in Devon and Somerset will benefit from a series of concerts performed by classical music group The Honeymead Ensemble, and supported by South West law firm Ashfords LLP, this spring.


For the third year running, Ashfords is supporting three concerts by the Ensemble, which includes world-renowned musicians led by violinist Tamsin Waley-Cohen, whose family home is on Exmoor.


The concerts, which will compris[...]]]>  


Charities in Devon and Somerset will benefit from a series of concerts performed by classical music group The Honeymead Ensemble, and supported by South West law firm Ashfords LLP, this spring.


For the third year running, Ashfords is supporting three concerts by the Ensemble, which includes world-renowned musicians led by violinist Tamsin Waley-Cohen, whose family home is on Exmoor.


The concerts, which will comprise two piano trios - Robert Schumann's piano trio in F Major and Beethoven's last trio The Archduke. The first concert, in aid of Exeter Cathedral's Third Millennium Fund, will be performed at the cathedral on Thursday 19th April.  On Friday, 20th April, the ensemble will perform at Dulverton Church in aid of the Calvert Trust and D&S Hunt Club. The final concert, on Saturday, 21st April, will be held at St Mary's Church in Taunton, in aid of Go Commando and in association with Taunton School.


Stephen Walker, a Partner at Ashfords Solicitors, said: "We are very proud to support the Honeymead Ensemble, which always attracts extremely talented performers, for the third year running. The series enjoyed great success in 2010 and 2011 and we hope that, yet again, the events will raise a substantial amount for worthwhile local causes."


Tamsin, who formed the Honeymead Ensemble in 2007, performs as a soloist with orchestras including the Royal Philharmonic Orchestra, Orchestra of St John's, London Concert Orchestra and London Chamber Orchestra, Orchestra of the Swan.


Also performing will be prize-winning cellist Bartholomew LaFollette and pianist Tom Poster, who features regularly on BBC Radio Three as a soloist and chamber musician. The Honeymead Ensemble has participated in festivals all over the UK and performs concerts annually across Somerset and Devon for the benefit of local charities.


The concerts start at 7.30pm. For more details, including ticket information, please visit www.ashfords.co.uk/events


 

]]> http://www.ashfords.co.uk/news/Weekly+Employment+Update+-+25th+January+2012 http://www.ashfords.co.uk/news/Weekly+Employment+Update+-+25th+January+2012 Thu, 26 Jan 2012 14:50:00 +0000
In Customer Systems Plc v Ranson an I.T. consultancy brought claims against a number of former employees who had left to set up or work for a rival business.

The High Court held that one of the employees in qu[...]]]>
In Customer Systems Plc v Ranson an I.T. consultancy brought claims against a number of former employees who had left to set up or work for a rival business.

The High Court held that one of the employees in question had been entitled to plan for the future, to set up a company in competition and create business plans, and he had not been obliged to inform his employer of this. In addition, he was entitled to see what opportunities there were for the new company, in a general way.

However, taking account of the employee’s position (that of senior sales manager) he had certain fiduciary duties to his employer. In addition, every contract of employment contains an implied term that an employee will serve their employer with good faith and fidelity. As such, the employee had breached his fiduciary duties and the duty of fidelity when he applied for work, failed to tell his current employer of the opportunity he had obtained for an order, extracted business contacts from his mobile phone and used the numbers for the new company’s benefit and copied the invoices, time sheets and order confirmations and used them as templates.

The employee had also offered a colleague a position in the company he had set up. Customer Systems Plc argued that this other employee had failed to alert it as to the existence of the company and had breached the duty of fidelity. However the High Court held that an employee who becomes aware of confidential matters relating to competition from a potential new employer is under no obligation to pass this information to his existing employer, as this would mean he would be in breach of confidence to his new employer.  A duty of fidelity to an existing employer would not necessarily defeat a duty of confidence to a new employer.

The High Court's decision is comforting for employers, showing that employees who wish to leave their current employer in order to set up in competition will face difficulties if they wish to take steps while still employed. Conversely, it will be reassuring for employees that wish to seek new employment to know that they will not come under a duty to inform their existing employer of what they have learnt in confidence when doing so.

Customer Systems Plc v Ranson, Atherton, Edmond and Offland [2011] EWHC 3304

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

]]> http://www.ashfords.co.uk/news/Olympic+hopeful+Gorgs+aiming+to+strike+gold+in+Munich http://www.ashfords.co.uk/news/Olympic+hopeful+Gorgs+aiming+to+strike+gold+in+Munich Thu, 26 Jan 2012 13:30:00 +0000


The 26 year old from Okehampton - who last year won a bronze medal at the Commonwealth Games in Delhi and is aiming to fill one of the two slots now available to Team GB for the Ladies Pistol event - is competing in the Munich International Airgun Competition, which is taking place until Saturday (January 28).


[...]]]>


The 26 year old from Okehampton - who last year won a bronze medal at the Commonwealth Games in Delhi and is aiming to fill one of the two slots now available to Team GB for the Ladies Pistol event - is competing in the Munich International Airgun Competition, which is taking place until Saturday (January 28).



Gorgs, the reigning  British Air Pistol Champion,  shot a season's best  in the European Cartridge Championships in Belgrade in August, and in the process achieved the required Olympic qualifying standard and earned Great Britain a second quota place in the 2012 Women's 25m Pistol Event. As the "Host Nation" Great Britain had been allocated one quota place for this event.

Jamie Horner, a Partner in the Sports Law team of Ashfords LLP, which is sponsoring Gorgs to help her in her Olympic quest, said: "We are proud to support Gorgs and wish her the very best of luck in the competition. She is a role model for any aspiring athlete and a pleasure to work with."  

Gorgs said: "Every shooting event is an excellent opportunity for me to prepare and practice should I make it to the Olympics. I would like to thank all of my sponsors as I no longer get any British Shooting Funding and, without the support of firms such as Ashfords, I would not be able to take part in international competitions".  

For more details, please visit www.gorgs4gold.com or www.ashfords.co.uk



]]> http://www.ashfords.co.uk/news/The+VAT+'22Chain'22 http://www.ashfords.co.uk/news/The+VAT+'22Chain'22 Thu, 19 Jan 2012 18:00:00 +0000

 


When you buy a VAT paid boat you must ensure that the seller has genuine proof of this.

Mr Green had bought a second hand Sunseeker Manhattan from a dealer on the South Coast. He was a sensible purchaser who had bought boats previously.  He was aware that the seller, Mr Smith would have to prove to him that he was the owner, that the VAT had been paid and that the boat was as described in the advertisement.  He insi[...]]]>

 


When you buy a VAT paid boat you must ensure that the seller has genuine proof of this.

Mr Green had bought a second hand Sunseeker Manhattan from a dealer on the South Coast. He was a sensible purchaser who had bought boats previously.  He was aware that the seller, Mr Smith would have to prove to him that he was the owner, that the VAT had been paid and that the boat was as described in the advertisement.  He insisted that a written contract was produced and that it contained all the usual warranties.  In due course he saw copies of all the previous Bills of Sale, registration and proof that the VAT had been paid.  When he saw the copy documents Mr Green wisely insisted that he saw the original VAT documents.  This would enable him to satisfy HMRC, if questioned.  

The seller had nothing to hide.  He had bought the boat from its second owner, who had in turn bought it from its first owner.  The complete chain of ownership could be seen from the Bills of Sale.

The first purchaser had bought the boat new and had immediately taken it to Spain.  He had left all this in the hands of his agent, who said that he would pay the IVA in Gibraltar.  The relevant certificate was still with the documents.

Mr Green received all these documents at completion and spent the next five years enjoying the boat.  He was then fortunate to be in a position to sell it and buy a much larger vessel.  He found a buyer and presented all his documents to him. Mr Holman was a cautious man and he passed them to his Spanish lawyer. He was not happy with the IVA certificate so Mr Holman insisted that Mr Green prove that it was genuine.

The law

Under the VAT Guidance issued by HMRC, VAT is accepted as paid if appropriate documentary evidence supporting this can be produced.  Such evidence should be carried at all times and Customs officials in EU Member States may require you to produce it.  Acceptable evidence in the UK is the original invoice or receipt, evidence that the VAT was paid at importation or invoices for materials used in the construction of a home built vessel.  Registration documents do not prove VAT status as there is no link between these and payment of VAT.

The Outcome

Poor old Mr Green was unable to prove that VAT had been paid. He thought he had an original document but having consulted Spanish lawyers it transpired that the original purchaser had been duped by his Spanish agent, who had pocketed the money and provided a forged document.  The IVA authorities in Spain had no record of payment and the vessel was therefore deemed as non VAT paid.

Where did this leave Mr Green?  The boat was in not in fact VAT paid and he was now either liable for payment on the current value or he had to sell it non VAT paid.   

He was not too happy and immediately consulted his legal advisors. They could only threaten legal action against Mr Smith, who had innocently misrepresented that the VAT had been paid. Despite being innocent of any wrongdoing, in reality, he was in breach of his sale contract with Mr Green and had to settle.

Mr Smith in turn, had a contract with his seller, who could have then have taken legal action against the original purchaser, who also genuinely thought that that he had paid the IVA.

The financial outcome was that Mr Green settled with Mr Smith for £30,000 and, in a falling market, Mr Green reduced the price to Mr Holman by £40,000.  It was fortunate that Mr Smith could be located and that he had funds to make this payment.  It is also very likely that the pervious owners would not have been contactable or simply unable to pay.

Lessons learned

The moral is that great attention needs to be paid to VAT documents particularly if they are foreign.  Although all sale contracts should contain a warranty about VAT, this is only enforceable against the person making it.  If the seller, at some future point, is proven to have been inaccurate or mistaken, he may be in breach of contract but will only be able to pay this if he can be successfully sued or indeed found. Avoid all this by checking them thoroughly at the time of purchase.


For further information, please contact Brian Taylor on +44 (0)1752 526032 or b.taylor@ashfords.co.uk, who specialises in marine work including contracts, collisions and VAT advice.


First published in 'Motor Boat & Yachting – Europe's best motor boat magazine'. 


To buy an issue of the magazine, please go to: http://gb.zinio.com/browse/publications/index.jsp?productId=117652628





Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.  


]]> http://www.ashfords.co.uk/news/Chiefs+focus+on+life+after+rugby http://www.ashfords.co.uk/news/Chiefs+focus+on+life+after+rugby Tue, 17 Jan 2012 10:30:00 +0000
The event was part of the career and education scheme that is part of the RPA's Player Development Programme, which provides support to players preparing for life when they retire from playing professi[...]]]>
The event was part of the career and education scheme that is part of the RPA's Player Development Programme, which provides support to players preparing for life when they retire from playing professional rugby.  

Guests from sectors including education, property and construction, finance, sport, events management, consultancy, charities and the media gave the players a valuable insight into different potential career paths, enabling them to assess their options for life after rugby.


Chiefs' scrum half and RPA Player Representative Haydn Thomas was full of praise for the event:
"I thought The RPA Networking evening was a great success. It was well attended and the feedback from the players was very positive. It is tough as a professional rugby player to know what to do when you retire. The event helped me make contacts that I plan to chase up in the not too distant future. I hope that these contacts will help me find out if their industry is for me. Exploring these avenues will hopefully give me a better idea of future careers."



Haydn's sentiments were echoed by Jamie Horner of Ashfords Solicitors:
"We were delighted to host Exeter's first RPA Business Club Networking Evening. It was a fantastic event that was very well supported by both players and local business. The relaxed and yet professional format of the evening provided a wonderful opportunity for Exeter Chiefs' players to learn about the work of, and explore potential synergies with, representatives from a varied range of regional business sectors, and also gave the businessmen and women that attended a chance to find out about the players' on and off field ambitions. Partnering business and sport in this way creates a perfect forum to share ideas and make worthwhile connections."



]]> http://www.ashfords.co.uk/news/Public+Sector+Update+-+January+2012 http://www.ashfords.co.uk/news/Public+Sector+Update+-+January+2012 Mon, 16 Jan 2012 11:15:00 +0000
Draft National Planning Policy Framework ("NPPF") considered by Commons Community Committee

The House of Commons Communities and Local Government Committee has released a report on the draft National Planning Policy Framework ("NPPF").  The draft NPPF would cut down over 1,000 pages of planning regulations down to just 52 with a view to overcoming planning delays, which the Government believes stunt economic growth. The committee has suggested a n[...]]]>
Draft National Planning Policy Framework ("NPPF") considered by Commons Community Committee

The House of Commons Communities and Local Government Committee has released a report on the draft National Planning Policy Framework ("NPPF").  The draft NPPF would cut down over 1,000 pages of planning regulations down to just 52 with a view to overcoming planning delays, which the Government believes stunt economic growth. The committee has suggested a number of significant changes and included their own definition of sustainable development.  

One of the main issues looked at in the report was the government's presumption of sustainable development.  The report said that in its current form the NPPF gave the impression that greater emphasis should be given in planning decisions to economic growth and undermined the environmental and social elements of the planning system. This was certainly the opinion that the NPPF's opponents, organisations like the National Trust, had expressed last year when the draft NPPF was first published.

The report sought to redress this and suggested their own definition of sustainable development; Sustainable development is development that should address economic, environmental and social benefits "positively and equally". Furthermore that planning decisions and policies should be based on principles that "areas should live within their environmental limits; should achieve a sustainable economy and should seek to ensure a strong, healthy and just society". The committee's suggestion shifts the focus away from the Government's earlier intent to promote economic growth to a more harmonised approached between economic, environmental and societal interests.

The report also called for more certainty in the draft NPPF. The fact that the NPPF had been condensed into 52 pages meant that critical wording had been lost and what remained was "often unhelpfully vague." The report singled out phrases like ‘significant weight’, ‘great weight’, ‘substantial weight’, ‘considerable weight’ and ‘significant flexibility’, and suggested that they should be more tightly defined.

Other key suggestions in the report included emphasising the importance of the local plan and clarifying the expression of policy on brownfield land, offices in town centres and windfall sites.

It remains to be seen, however, what suggestions the Government will now implement into the final version of the NPPF. Government Minister Greg Clark has welcomed the report and said that he and the Government would consider the committee's report "very carefully".




Employment




Doctor Awarded Record Discrimination Compensation

Mid Yorkshire Hospitals NHS Trust, along with three of its senior employees, has been ordered by an Employment Tribunal to pay almost £4.5 million in compensation for racial and sex discrimination.  The award is believed to be the largest ever to be ordered in a UK discrimination case.
The successful claimant, Dr Eva Michalak, was employed as an obstetrician at Pontefract General Infirmary.  Before her dismissal in July 2008 she had, the Tribunal found, been subject to a "concerted campaign" to end her employment, which began shortly before she went on maternity leave.  She was the victim of false allegations, harassment, and unjustified suspension from work. These actions had a serious effect on Dr Michalak's psychiatric health, and she is, as a result, unlikely to return to her former profession.

This ruling is a dramatic reminder to employers of the need to take steps to avoid employees being subject to discrimination and harassment. Unlike the compensatory award in unfair dismissal cases, which is currently limited to £68,400 (£72,300 from 1/2/12) there is no statutory cap on awards where discrimination is established.  This will be of particular concern to public sector employers, which are under increasing budgetary pressures - the NHS Trust in this case, for example, is already struggling to make £30 million of efficiency savings. 

The fact that Dr Michalak was a relatively high-paid employee, with an annual salary of £88,000, was clearly relevant to the size of her compensation award.  However, it is important to note that even lower-paid employees can be awarded sizeable sums if they are found to be the victims of discrimination.  In general, compensation for loss of future earnings is rising, as Employment Tribunals recognise the lack of alternative positions in the current job market.  In the public sector context in particular, compensation for loss of pension rights can be substantial, as it is unlikely that most employees would be able to find a comparable pension in the private sector. In this case, for example, £660,000 was awarded for loss of pension rights alone.

Fortunately, there are practical steps that public sector employers can take to limit  the risk of discrimination and harassment claims succeeding.  Employers should ensure that their policies and procedures are comprehensive and are updated to reflect developments in the law.  In particular, training and written policies can be used to make staff aware of what constitutes discrimination and harassment, and appropriate disciplinary sanctions applied for discrimination-related misconduct.  An effective Anti-Harassment procedure may also allow employees' concerns to be addressed internally, before they give rise to potentially expensive claims.







Construction


Disclosure of Experts' Reports in Construction Disputes

Many construction disputes revolve around technical points and issues.  As a result, professional consultants are often used as experts to help resolve or determine construction disputes by giving their opinions on critical issues such as price (where the value of works is in dispute) and/or quality (where it is alleged, for example, that work has not been carried in accordance with the contract).  When a party instructs an expert in support of its case, while investigations take place, and perhaps as a result of further and important information emerging, the report is likely to develop through a number of draft stages before it is presented in its final form. 

Any report relied upon by a party to litigation proceedings must be disclosed to the other parties for them to examine and, if appropriate, challenge its contents.  However, the general rule is that until an expert report is adduced as evidence its contents are legally privilege - in other words they are not disclosable as a matter of right to the other parties. 

The question of whether privilege in a report is waived at an earlier stage, specifically when the contents of a document are 'deployed' in evidence by, for example, quoting extracts in a witness statement or claim form, was explored recently by the Technology and Construction Court in ACD (Landscape Architects) Limited v Overall [2011] EWHC 3362 (TCC).

The Court considered and decided that privilege would be waived where the document is "actually or effectively referred to… and or part of its contents are deployed for use actually or potentially" in the proceedings.  The crucial distinction is "whether the contents… are being relied upon rather than the effect or impact of the document".

If a party relies on parts of the contents of a document, then that party will be required to disclose the whole document to avoid situations that may allow parties to cherry-pick extracts and withhold information that could benefit another party.

Accordingly, if a party does not want to disclose certain aspects of a report then they should not refer to any of its contents, even if particular extracts support that party's case.

Such waiver of privilege may also impact on compliance with procedural rules.  In the ACD case above, as the draft report in question had become disclosable, the Court took the view that the Defendant had failed to comply with Paragraph 6.4.2 of the TCC Guide, which states

"It is important to ensure that the evidence in opposition to the application is served in good time [5 days minimum] before the hearing so as to enable:




The court to read and mark up the evidence;and


The applicant to put in any further evidence in reply that may be considered necessary."


In short, a party to litigation proposing to quote from an expert's report in support of its case should, before doing so, decide whether it is prepared to share in full the contents of that report at that particular time. 






Education


Admissions

It is anticipated that the new Admissions Code and Admissions Appeal Codes will come into force on 1 February 2012, affecting the 2013/14 admissions intake.  These make a number of changes, including the ability of schools to increase their numbers without objection.

Consultations

The Department for Education is very active at present, with a number of consultations due to close shortly (see http://www.education.gov.uk/consultations/). The consultation on Academy Land Schemes closes on 18 January.  It is aimed at local authorities and relates to the Secretary of State's power to make schemes to transfer local authority land, which has been used for the purposes of a maintained school in the last 8 years but is no longer so used, to a free school or academy.  This would require local authorities to provide certain prescribed information (such as title information) to the Secretary of State. 

The consultation on revised exclusions guidance and regulations is open until 17th February 2012.  It reflects provisions of section 4 of the Education Act 2011 (not yet in force), which replaces Independent Appeal Panels with Independent Review Panels ("IRPS").  IRPs cannot direct the reinstatement of a pupil; where the IRP considers an exclusion decision to be flawed on judicial review principles, it can quash the decision and require governors to reconsider.  If the school does not then reinstate, it will be expected to pay a contribution towards alternative provision for that pupil. Parents will also be able to request the appointment of a SEN expert to advise the panel on how SEN may be relevant to the exclusion.  Where disability discrimination is alleged, the exclusion case can be taken to the First Tier tribunal.
 
Substantive legitimate expectations and barring

In R (on the application of W) v Secretary of State for Education [2011] EWHC 3256 (Admin) a Claimant teacher, Mr Wood, had been investigated following allegations of assault and indecency in 2000-2002.  Mr Wood was clearly notified by letter in 2005 that no further action would be taken in the absence of further misconduct.  There was no further misconduct.  In January 2009 the Claimant was informed that his case was being reconsidered as part of a Historical Cases Review (arising from general concerns about child protection cases), following which the Claimant was barred.  The Claimant did not appeal, but challenged the decision by judicial review on grounds that it was an abuse of power as it was taken in breach of a substantive legitimate expectation that he would not be barred, and/or that it breached his human rights to a fair hearing (article 6) and to respect for private life (article 8). 

The claim failed.  Whilst it was accepted that the Claimant had a substantive legitimate expectation based on the 2005 letter, it was found that the Secretary of State had both a legitimate aim and acted proportionately in deciding to reconsider the Claimant’s case.  There was an overriding public interest in protecting children, and it was proportionate: cases had only been reconsidered where there might be a current risk to children, and fair procedures (e.g. the right to make representations, an expert panel, and right to appeal any barring decision) were in place. In terms of human rights, the article 6 claim failed because that related to procedural fairness, and the real issue related to the barring decision.  It was accepted that the bar interfered with the article 8 right to private life, but this was found to be justified.






Personal Injury


In many local education authorities it remains part of the physical education curriculum for schoolchildren to be given swimming lessons. Often the solution has been for schools to take their pupils to the local council-run swimming pool to conduct the lessons.

The High Court case below reviewed the extent of duty of care on local authorities when injury is sustained at these premises.

Woodland v The Swimming Teachers' Association, Essex County Council and others [2011] EWHC 2631 (QB)

The claimant was a ten year old child who had attended a swimming lesson arranged by her school at a swimming pool run by Basildon District Council. During the lesson the claimant suffered a head injury which caused severe hypoxic brain damage.

The claimant, through her father, brought a claim in negligence against a number of bodies, including Essex County Council, the local education authority. The claimant alleged that the defendant had failed to act as a reasonable parent would have done.

The Council accepted that it owed a duty to the claimant to take the reasonable care that a reasonable parent would take, and to reasonably ensure that any contractors would be able to fulfil their duties. The Council denied any duty to ensure that reasonable care is taken by third parties to the extent that the Council would be responsible for any breach of care ('non-delegable duty of care').

The court agreed with the Council's arguments. Neither the lifeguard on duty nor the people running the swimming lessons were employees of the defendant. The accident did not occur on school premises or under the school’s control. To impose a non-delegable duty of care would involve a considerable expansion of liability beyond the standard of a reasonable parent. The appropriate duty was for the Council to take reasonable care that the contractors it hired had laid down safe and proper systems of work for their lifeguards, which the defendant had done.
 
Comment
There is a policy dilemma with the contracting out of work that public authorities may have previously performed using direct employed labour. In Australia the courts have recognised that in some circumstances a school authority may owe a duty not to just take reasonable care of a pupil themselves but also to ensure that reasonable care is taken by others. The distinction is that the Australian authorities have arrived at their judgments by looking at the position of the person to whom the duty is owed as opposed to looking at the position of the person owing the duty. To place a non-delegable duty of care upon local education authorities in respect of their pupils, as a policy decision at least, would be unduly burdensome.

Ashfords' Personal Injury Team has extensive experience in all areas of personal injury claims, ranging from accidents on public property or at work to road traffic accidents and clinical negligence.  If you have had a claim made against you and would like to discuss your options, please contact Flora Wood, Partner, on 01392 334020.






Public Procurement




The end of the relaxation on the use of the accelerated restricted procedure

On 31 December 2011 the European Commission's authorised relaxation on the use of the accelerated restricted procedure, on the basis that acceleration benefits the economy, ended. This means that the accelerated restricted procedure is once again only available for situations in which urgency renders impracticable the time limits for the restricted procedure.

Contract set aside for immaterial considerations not specified in tender documents: Resource (NI) v Northern Ireland Courts & Tribunals Service [2011] NIQB 121

The Northern Ireland High Court has set aside a contract award decision where it held that the Northern Ireland Courts and Tribunal Service ("NICTS") made a manifest and serious error in taking into account immaterial considerations that were not specified in the tender documents.

In 2010 the NICTS issued a contract notice for the provision of security services and other services at court locations. The tender documents stated that the contract was to be awarded to the most economically advantageous tender based on specified criteria and sub-criteria. The tender documents explicitly required the bidder to collect cash at the various courts and deposit those monies on a daily basis. While the successful bidder stated that it would comply with this requirement, it made its bid more appealing by proposing a superior cash collection mechanism that it was uniquely positioned to offer.

In its judgement, the Northern Ireland High Court held that this additional piece of information had such a powerful effect on the NICTS that it "infected" it with impermissible influences, thereby prejudicing its objectivity and amounting to preferential treatment. In less florid language, the court recorded that the evaluation panel had failed to make its judgement based solely on "the evaluation criteria or information requested".

This case is significant for a number of reasons. First and foremost is the reminder that no matter how impressive a tender is in the optional extras, evaluation panels must make sure that they only judge submissions on the stated award criteria. A second lesson that can be learned from this case is the importance of keeping detailed records, as in this case the evaluation panel was unable to disprove the claims or convince the court of its position because it had failed to clearly state in its evaluation report that the additional information provided by the successful bidder was irrelevant to their considerations.

Finally, the remedy awarded in this case highlights the court's general unwillingness to go beyond a strict interpretation of their power to set aside contract award decisions. In the present case the unsuccessful bidder claimant not only argued that the contract should have been awarded to it, but went so far as to ask the court to make such an order. Avoiding the radical step of actually awarding a contract and sidestepping the more surgical proposal of requiring that only the tainted aspects of the tender be re-evaluated, the Northern Ireland High Court set aside the contract in its entirety.

Commission proposals for modernising public procurement

In December 2011 the European Commission adopted proposals for the modernisation of public procurement. The proposals include revisions to the Utilities Directive (2004/17/EC) and the Public Contracts Directive (2004/18/EC) and the adoption of a new directive for the comprehensive regulation of concessions. The objective of these reforms is to simplify the procurement process and make it more flexible in order to promote efficiency and ensure value for money. It is hoped that this will level the playing field for SMEs and facilitate the promotion of socially responsible procurement.

Proposals of note that will amend the Public Contracts Directive if adopted include:




New amended definition of procurement: "the purchase or other forms of acquisition of works, supplies or services by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose. An entirety of works, supplies and/or services, even if purchased through different contracts, constitutes a single procurement within the meaning of this Directive, if the contracts are part of one single project";


Mandating two basic procedures that member states must make available: the open procedure and the restricted procedure;


Permitting optional procedures that member states may use: a competitive procedure with negotiation, the competitive dialogue procedure and the newly created innovation partnership designed to embrace research and innovation; and


The promotion of e-procurement in the form of mandatory transmission of notices in electronic form and fully electronic communication after a two year transition period.


The proposals have been passed to the European Council and the European Parliament for adoption. If adopted in the current year, the measures should be transposed by the member states in the second half of 2014.






Property Litigation




Have your say on the Right to Buy

Social housing has hit the headlines on several occasions over recent weeks, with various consultation documents being published. One of the highest profile consultations relates to the Government's proposed amendments to the 'Right to Buy' and 'Preserved Right to Buy' schemes. The Government's aim is to boost home ownership for social tenants whilst maintaining the affordable housing stock and stimulating construction activity by the reinvestment of the Right to Buy sale receipts in house building.

The consultation suggests an increase in the discount purchasing tenants can receive to a maximum £50,000 discount, whilst maintaining the current 5 year qualifying period. The Government is inviting views on this proposal, and (amongst other things) on how the changes will impact on rural areas.

The consultation goes on to discuss the proposed changes to the accounting procedures in respect of Right to Buy sales and then at the plans to deliver one for one replacement of homes sold under Right to Buy. In respect of housing associations with Preserved Right to Buy tenants, the Government is keen to incentivise housing associations to use Right to Buy receipts for replacement homes. Proposals include giving associations who invest Right to Buy receipts in replacement homes priority for future funding and priority to extra funds in the Affordable Homes Programme.

This consultation is open until 2 February 2012. For further information and for details of how to respond the full consultation document can be found at http://www.communities.gov.uk/publications/housing/reinvigoratingrighttobuy




Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only.  We have no control over the content and accept no responsibility for them.

]]> http://www.ashfords.co.uk/news/Data+Protection+and+Freedom+of+Information+Update+-+January+2012 http://www.ashfords.co.uk/news/Data+Protection+and+Freedom+of+Information+Update+-+January+2012 Mon, 16 Jan 2012 10:30:00 +0000






Out with the old, in with the new.



The start of 2012 brought to an end a busy year for the Information Commissioner. High profile businesses and the public sector alike felt the full force of the Data Protection Act in a number of high profile breaches to hit the news in 2011.

'Openness, transparency, education and awareness'  -
just some of the buzz words for 2012[...]]]>






Out with the old, in with the new.



The start of 2012 brought to an end a busy year for the Information Commissioner. High profile businesses and the public sector alike felt the full force of the Data Protection Act in a number of high profile breaches to hit the news in 2011.

'Openness, transparency, education and awareness'  -
just some of the buzz words for 2012 published by the ICO in its pre-Christmas strategy document.  Let us not then dwell on the past, but look ahead to 2012.

The highly anticipated European Union draft legal framework for the protection of personal data was published in November last year. The EU's objectives, "to establish a harmonised and coherent framework allowing for a smooth transfer of personal data across borders within the EU", recognises that building trust in online technology is critical to sustained growth between Member States.

There is no word yet on when the new framework will be implemented, but it is expected to introduce, amongst other things, the compulsory notification of all data protection breaches within strict time limits and a penalty structure calculated on a percentage global annual turnover, rumoured to be as high as 5%.

The increasing use of mobile technology is likely to create another buzz word for 2012 -  'encryption'. A number of breaches by public sector health care providers in 2011 highlighted the risk of personal data getting into the wrong hands - lost and stolen laptops, USB sticks - whilst often innocent mistakes often lead to serious data protection breaches.  Losing client trust, brand equity, together with the risk of losing corporate IP, in addition to a possible ICO imposed penalties means losing control of personal data is an expensive mistake.

26 May 2012 should already be a date on the organisational calendar. This key date ushers in the Privacy and Electronic Regulations 2003, which are fully implemented after a 12 month grace period. The regulations require businesses and organisations in the UK to obtain consent from website visitors before storing non-essential cookies on users' computers.  Following this grace period, the ICO will take action against non-compliance. Website operators should ensure that they are fully aware of their obligations and must be able to show that they are taking positive steps toward compliance before the 26 May 2012 cut off date.

It is clear that 2012 brings a number of challenges and additional compliance costs to businesses. The ICO has already identified the risk of businesses cutting 'data protection corners' in a persistently difficult economic climate.  The ICO emphasis, however, remains one of  deterrence through education and the encouragement of the private and public sector to take a responsible approach to data protection. Ultimately the risk of losing brand reputation and having to destroy non-compliant data may prove to be a greater deterrent than statutory fines.

Arguably the public are set to benefit from increased regulation at a time of rapid advancement in global technology. The economic and social landscape is changing and personal data, identity and virtual identities are increasingly recognised as a commodity - to be valued and protected.


 




Decision Notices




Case Ref: FS50369264
Public Authority:  Rickmansworth School

Summary: The complainant requested information relating to the tendering of a cleaning contract in 2010. The school failed to provide the information within the statutory timescales. On the intervention of the Commissioner the complainant was provided with the required information. The complaint was upheld but no further action was required by the School.

Case Ref: FS50412611
Public Authority: University of Warwick
   
Summary: The university's failure to provide an electronic copy of a document held in its Modern Records Centre prompted a complaint to the Commissioner. The university justified its decision by reference to section 21 of the Freedom of Information Act - that the material was already available in another form. The Information Commissioner upheld the university's decision and no further action need be taken.

Case Ref: FER4014857
Public Authority: HM Treasury

Summary: A complex and lengthy request for information was made to HM Treasury which centred on the Government initiative to encourage the production of green energy through the installation of wind turbines.

The complainant, making the observation that currently all wind turbines were manufactured overseas and imported into the UK, asked for information that would allow a comparison of various tax calculations. The Commissioner found that HM Treasury had failed to issue a valid refusal notice within the specified period and in addition had relied on the incorrect regime. The Commissioner held that the request should have been dealt with under Environment Information Regulations and not the Freedom of Information Act. HM Treasury subsequently provided the requested information under the EIR and whilst the complaint was upheld no further action by the public authority was required.

Case Ref: FS50422187
Public Authority: Walberswick Parish Council

Summary: The complainant requested a copy of a speech made by a chairman at a local parish meeting. The Council refused to provide the information, as a result of which the complainant investigated the Council's internal complaints
procedure. The Council had initially refused the complainant's request on the basis that the information was protected by legal professional privilege. Subsequently the Council refused the information on the basis that repeated and vexatious requests had been made under the authority  granted to them by section 14 of the Freedom of Information Act.  Following the Commissioner's involvement, the Council advised that they were not able to provide the information because it could not be located. The Commissioner held that on the balance of probability, the Council were not able to trace the required information, but recorded a breach of Section 10 of FOIA which requires that a formal response to a request for information be made within 20 days.

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.




]]> http://www.ashfords.co.uk/news/The+War+Against+Ticket+Touts http://www.ashfords.co.uk/news/The+War+Against+Ticket+Touts Wed, 11 Jan 2012 17:15:00 +0000

A recent Court of Appeal decision could deter rugby fans from trying to resell tickets at more than face value on the internet.

Last month the Court of Appeal ruled, in Rugby Football Union v Viagogo Limited, that the ticketing website Viagogo must provide the Rugby Football Union (RFU) with the names and addresses of anyone that had sold tickets on its website for the 2010 Autumn Internationals and the 2011 Six Nations at more than face value, in [...]]]>

A recent Court of Appeal decision could deter rugby fans from trying to resell tickets at more than face value on the internet.

Last month the Court of Appeal ruled, in Rugby Football Union v Viagogo Limited, that the ticketing website Viagogo must provide the Rugby Football Union (RFU) with the names and addresses of anyone that had sold tickets on its website for the 2010 Autumn Internationals and the 2011 Six Nations at more than face value, in order to enable the RFU to take action against them.  

Viagogo is a secondary ticketing website on which people may resell tickets online for sporting, music and other events.   Although the resale of football tickets is prohibited under the Criminal Justice and Public Order Act 1994 unless authorised by the 'organiser' of matches (Viagogo is currently authorised by a number of Premier football and rugby clubs to sell secondary tickets for games), there is no such prohibition against the resale of tickets for rugby matches.  However, the RFU argued that it prices its tickets so that they are affordable in accordance with its aim to promote and develop rugby, denying itself of large profits in the process.  The RFU argued that there would be little point in this if the tickets could be resold at inflated prices.

The Court of Appeal decided that the High Court was correct to grant the RFU a so-called Norwich Pharmacal order, which required Viagogo to identify persons advertising and selling the rugby tickets for more than face value.  A Norwich Pharmacal order can be made against a third party that has, through no fault of its own, facilitated a wrongdoing.  The purpose of the order is typically to identify wrongdoers - in this case, the persons advertising and selling the tickets.

The High Court had decided that those re-selling the tickets had committed a wrongdoing in that they:

•    had a contract with the RFU, and had breached its terms (i.e. the RFU's ticket distribution conditions), which forbid the resale of tickets at more than face value; and
•    were liable in tort.  As the ticket distribution conditions give the RFU the right to refuse entry to anyone possessing a ticket sold at more than face value, such ticket holders were trespassers.  The ticket sellers were jointly liable for their trespass.

It also decided that Viagogo was involved in the wrongdoing, as it had allowed the tickets to be advertised on its website at inflated prices.

The Court of Appeal agreed with this reasoning and concluded that the decision to grant the Norwich Pharmacal Order was correct, as it was the only realistic means of discovering the identity of those advertising and selling the tickets.  Disclosing the identity of those involved was also found to be in line with the Data Protection Act 1998, as it was proportionate in the circumstances.

In a separate crackdown against ticket touts, the Sale of Tickets (Sporting and Cultural Events) Bill is expected to have its second reading debate on 20 January 2012 in the House of Commons.  This Private Members' Bill, brought by Sharon Hodgson MP, aims to tackle ticket touting by allowing event organisers to prevent the unauthorised resale of their tickets at more than 10 per cent above face value.

For sports law enquiries, please contact Jamie Horner on 01392 333993 or j.horner@ashfords.co.uk



Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

]]> http://www.ashfords.co.uk/news/Weekly+Employment+Update+-+11th+January+2012 http://www.ashfords.co.uk/news/Weekly+Employment+Update+-+11th+January+2012 Wed, 11 Jan 2012 09:35:00 +0000
Mr. Coulson, the former Editor of the News in the World, had a compromise agreement with his employer dealing with the termination of his[...]]]>
Mr. Coulson, the former Editor of the News in the World, had a compromise agreement with his employer dealing with the termination of his employment.  The agreement had an indemnity clause that provided that his employer would pay any reasonable professional costs and expenses properly incurred by Mr. Coulson after the termination of his employment which arose from him having to defend, or appear in, any administrative, regulatory, judicial or quasi-judicial proceedings as a result of his having been employed as the Editor.

Mr. Coulson was arrested for criminal allegations of phone hacking and of bribing police officers during his time as Editor. He was not charged, but was given bail.  Mr. Coulson sought a declaration that the indemnity in the compromise agreement obliged the News of the World to pay for his legal expenses in defending these proceedings.

The High Court held that it could not have been intended that activity outside the scope of the Mr. Coulson's lawful responsibilities as Editor would be covered by the indemnity, particularly where the activity involved serious criminal activities. Furthermore, although "judicial proceedings" did not exclude criminal proceedings, the intention of the clause was to protect Mr. Coulson from legal professional expenses arising from the "ordinary occupational hazards" as Editor: it did not cover criminal allegations made against Mr. Coulson personally.

The wording of this indemnity clause is standard in most compromise agreements and it is now established that it will only cover professional fees and expenses arising from lawful activities flowing from an employee's employment.

Coulson v Newsgroup Newspapers Limited

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

]]> http://www.ashfords.co.uk/news/January'3A+a+busy+month+for+divorce http://www.ashfords.co.uk/news/January'3A+a+busy+month+for+divorce Tue, 10 Jan 2012 12:10:00 +0000

January is notoriously busy for family lawyers, with more divorce related enquires than any other time of the year. This January is set to be no different, as couples re-assess their lives following the Christmas and New Year period.

The Ministry of Justice has released statistics from the DirectGov website, which shows that searches for 'divorce' or related terms are 71% higher in early January than in early December. Christmas is often a stressfu[...]]]>

January is notoriously busy for family lawyers, with more divorce related enquires than any other time of the year. This January is set to be no different, as couples re-assess their lives following the Christmas and New Year period.

The Ministry of Justice has released statistics from the DirectGov website, which shows that searches for 'divorce' or related terms are 71% higher in early January than in early December. Christmas is often a stressful time for couples and January can represent a time for change.

In general, the number of couples who get divorced is increasing. This is despite years of decreasing divorce rates; 2009 saw the lowest number of divorces for over 35 years. New data published by the Office for National Statistics shows that divorce rates in 2010 were up by 4.9 per cent on the previous year.

Concerned by such figures, Sir Paul Coleridge has launched a campaign to promote marriage. Sir Coleridge, a senior High Court Judge, has called on people to re-think their "re-cycling" attitude to relationships, especially when these involve children.

From April 2011 all couples seeking a divorce must attend an initial mediation session as an alternative method to the court process for settling disputes.

For more details of the mediation service provided by Ashfords, call 01823 23 2303.



Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

]]> http://www.ashfords.co.uk/news/Supervising+swimming+lessons+-+duty+of+the+local+authority-|+ http://www.ashfords.co.uk/news/Supervising+swimming+lessons+-+duty+of+the+local+authority-|+ Fri, 06 Jan 2012 09:35:00 +0000

The High Court case below reviewed the extent of duty of care on local authorities when injury is sustained at these premises.


Woodland v The Swimming Teachers' Association, Essex County Counc[...]]]>

The High Court case below reviewed the extent of duty of care on local authorities when injury is sustained at these premises.


Woodland v The Swimming Teachers' Association, Essex County Council and others [2011] EWHC 2631 (QB)


The claimant was a ten year old child who had attended a swimming lesson arranged by her school at a swimming pool run by Basildon District Council. During the lesson the claimant suffered a head injury which caused severe hypoxic brain damage.


The claimant, through her father, brought a claim in negligence against a number of bodies, including Essex County Council, the local education authority. The claimant alleged that the defendant had failed to act as a reasonable parent would have done.


The Council accepted that it owed a duty to the claimant to take the reasonable care that a reasonable parent would take and to reasonably ensure that any contractors would be able to fulfil their duties. The Council denied any duty to ensure that reasonable care is taken by third parties to the extent that the Council would be responsible for any breach of care ('non-delegable duty of care').



The court agreed with the Council's arguments. Neither the lifeguard on duty nor the people running the swimming lessons were employees of the defendant. The accident did not occur on school premises or under the school’s control. To impose a non-delegable duty of care would involve a considerable expansion of liability beyond the standard of a reasonable parent. The appropriate duty was for the Council to take reasonable care that the contractors it hired had laid down safe and proper systems of work for their lifeguards, which the defendant had done.



Comment: There is a policy dilemma with the contracting out of work which public authorities may have previously performed using direct employed labour. In Australia the courts have recognised that  in some circumstances  a school authority may owe a duty not to just take reasonable care of a pupil themselves but also to ensure that reasonable care is taken by others. The distinction is that the Australian authorities have arrived at their judgments by looking at the position of the person to whom the duty is owed as opposed to looking at the position of the person owing the duty. To place a non-delegable duty of care upon local education authorities in respect of their pupils, as a policy decision at least, would be unduly burdensome.

Ashfords' Personal Injury Team has extensive experience in all areas of personal injury claims, ranging from accidents on public property or at work to road traffic accidents and clinical negligence.  If you have had a claim made against you and would like to discuss your options, please contact Flora Wood, Partner, on 01392 334020.


Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.


]]> http://www.ashfords.co.uk/news/Weekly+Employment+Update+-+4th+January+2012 http://www.ashfords.co.uk/news/Weekly+Employment+Update+-+4th+January+2012 Wed, 04 Jan 2012 10:45:00 +0000
The rapid pace of change in employment law looks set to continue during 2012.  Significant developments expected this year include the following:




Statutory Limits on Tribunal Awards: These will increase in[...]]]>
The rapid pace of change in employment law looks set to continue during 2012.  Significant developments expected this year include the following:




Statutory Limits on Tribunal Awards: These will increase in February.  The limit on a week's pay (for the purposes of calculating redundancy payments and the basic award in unfair dismissal cases) will rise from £400 to £430, and the maximum compensatory award for an unfair dismissal will increase from £68,200 to £72,300.


Tribunal Fees: In March, the Government's consultation on the introduction of fees for bringing employment tribunal claims will close.  The details of these fees will be of interest to employers, in particular in terms of the impact they have of reducing speculative claims.


Qualifying Period for Unfair Dismissal: In April, this will rise from one to two years.  Employers will be able to dismiss employees with fewer than two years' service without giving a fair reason, although they will need to be careful to avoid claims of discrimination, which will stay open to all employees.


Statutory Payments: From April, the rate of statutory sick pay will increase from £81.60 to £85.85 per week, as will rates of maternity, paternity and adoption pay (from £128.73 per week to £135.45 per week).


Tribunal Procedure: Changes to the tribunal process are expected to come into force in April.  Judges will be able to hear unfair dismissal cases without the two lay members that currently sit, and in most cases will take witness statements "as read".  The maximum size of a costs award and deposit order will also double. 



Pensions Auto-Enrolment: From October, employers will be obliged to automatically enrol eligible employees in a pension scheme and to contribute to that pension.  Although it will be larger employers that are affected first, employers of all sizes need to begin preparing for this change.


Holidays and Sickness Absence: Changes to the Working Time Regulations 1998, to allow sick workers who are unable to take their annual leave to carry it over, are expected later this year.  It is hoped that this will resolve the current inconsistency between UK legislation and EU case law.
With so much change coming up in the next 12 months, it is more important than ever for employers to keep their practices and policies under review, and to take legal advice where they are unsure about the practical impact of any new legislation.

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
]]> http://www.ashfords.co.uk/news/Cross+Border+Restructuring+and+Insolvency+Update+-+December+2011 http://www.ashfords.co.uk/news/Cross+Border+Restructuring+and+Insolvency+Update+-+December+2011 Wed, 21 Dec 2011 16:35:00 +0000

Can you pursue legal proceedings against a company in administration?


Australia ruling sees law changed to mirror that in the UK




Whilst the court has discretion to grant leave to bring proceedings against a company in administration, the traditional approach of the Australian courts has been that leave should only rarely be granted. However, the recent case of Larkden Pty Limited v Lloyd Energy Systems Pty Li[...]]]>

Can you pursue legal proceedings against a company in administration?


Australia ruling sees law changed to mirror that in the UK




Whilst the court has discretion to grant leave to bring proceedings against a company in administration, the traditional approach of the Australian courts has been that leave should only rarely be granted. However, the recent case of Larkden Pty Limited v Lloyd Energy Systems Pty Limited1  has now made it easier for a party to pursue legal proceedings against a company in administration. The Supreme Court of New South Wales held that the decision to grant leave would now be determined by the circumstances of each case. The court in this case lifted the stay in the proceedings, being persuaded by the fact that the proceedings were of minimal distraction to the administrator and minimal prejudice to other unsecured creditors.

This decision is in line with the UK as laid down in Re Atlantic Computer Systems plc2 ; leave should only be granted in exceptional circumstances, and the court should take account of all of the circumstances of each case whilst weighing up the relevant prejudice for the parties. In Atlantic Computers, a finance company applied for leave to repossess goods. Leave was granted as Atlantic Computers were still using the goods and should therefore pay for them.



1[2011] NSWSC 268
2 [1992] 2 W.L.R. 367





ECJ clarifies criteria for bringing territorial insolvency proceedings




The latest case from the ECJ

The recent ECJ case of Zaza Retail3  has ruled on the criteria for bringing territorial proceedings under Art 3(2) of the EC Regulation 1346/2000. The Regulation allows a creditor to commence insolvency proceedings in a state where the debtor company does not have its Centre of Main Interest ("COMI").

The case concerned attempts by Belgian authorities to bring proceedings in Belgium as they lacked standing to bring the proceedings in the company's COMI (the Netherlands). The question arose as to the authorities' entitlement to bring territorial proceedings given they were not creditors of the company themselves, but were acting in the interests of the Belgian public who were.

The ECJ held that the Belgian authorities could not bring proceedings in Belgium. Firstly, they were not a creditor of the company. A party is only a "creditor" if owed money by the debtor. Representative action would require a more direct link between the Belgian authorities and the creditors than just general "public interest".

Secondly, the barrier to the Belgian authorities commencing proceedings in the debtor's COMI must have been objective and not peculiar to them. In this case any actual creditor could have instigated proceedings in the Netherlands; it was the "public interest" standing of the Belgian authorities which was not recognised.



3 (Area of Freedom, Security and Justice) Case C-112/10 [2011] EUCJ





Updates from around the world




Spain

Amendments to Spanish Insolvency Law will come into effect on 1 January 2012. The main changes include new measures on the enforceability of refinance agreements, the introduction of an additional time period before the insolvency proceedings with the objective to negotiate an agreement of the creditors in advance, and measures to expedite the insolvency process and reduce costs.

United Arab Emirates

A draft bankruptcy law designed to support companies in financial difficulties is reaching its final stages before enactment. The legislation will overhaul how the law deals with businesses and individuals with debt burdens they cannot pay. It is expected to map out a process for the restructuring of debt and set out rules to enable businesses struggling financially to access bank loans.

Germany

Manroland AG, the German printing press-maker, has filed for insolvency, making it the country’s biggest corporate failure since retailer Arcandor AG collapsed two years ago. The failure is blamed on a failed merger bid and a lack of financial support. 6,500 employees are set to lose their jobs.

Italy

New austerity measures are being introduced by newly elected Prime Minister Mario Monti. The austerity package includes €20 billion of budget tightening and aims to raise an additional €10 billion from a property tax, levies on luxury items like yachts, a raise in value added tax, a crack down on tax evasion and increasing the pension age.

UK

The UK has opted out of an EU Regulation that creates a new debt recovery regime within the EU. The Regulation would allow a creditor in one EU state to freeze a sum of money in the account of a debtor in another EU state. The UK criticised the Regulation in its current form for not containing enough safeguards and being open to abuse by creditors.






Merry Christmas and a happy New Year!

 





Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.



]]> http://www.ashfords.co.uk/news/Ashfords'27+Marine+Newsletter+-+Winter+2011 http://www.ashfords.co.uk/news/Ashfords'27+Marine+Newsletter+-+Winter+2011 Wed, 21 Dec 2011 14:20:00 +0000





Welcome to this edition of the Ashfords Marine Newsletter.


The Christmas and New year are busy periods for mariners and we trust that all our clients have had a good and safe Christmas break. We also wish you all a prosperous New Year.

In this addition of our Newsletter we look at jurisdiction issues, VAT and a commercial construction of contracts. We also update you on arbitration and look at fundi[...]]]>





Welcome to this edition of the Ashfords Marine Newsletter.


The Christmas and New year are busy periods for mariners and we trust that all our clients have had a good and safe Christmas break. We also wish you all a prosperous New Year.

In this addition of our Newsletter we look at jurisdiction issues, VAT and a commercial construction of contracts. We also update you on arbitration and look at funding large commercial claims on a Conditional Fee basis - particularly important in these difficult economic times.

As a department this has been a busy period for us all and we continue to look at ways of improving our service to our clients from all our offices, particularly those in London, Exeter, Plymouth and Bristol.

Over the last quarter:


Ashfords hosted a reception at the Waterfront restaurant during the recent Americas Cup racing, which was staged at Plymouth from 10-18 September. Marine clients of the firm attended. Charles Hattersley has since written an article on the legacy of this event;


Jonathan Hadley Piggin and Rachel Stebbing attended the Monaco Boat Show from 21-24 September;


Charles Hattersley and Brian Taylor attended the Southampton Boat Show on 22 September, where free legal consultation was provided by Brian;


Charles Hattersley attended the Nautical Institute Command Seminar on 04/05 November at Bristol and the 4th Annual UK Ports Conference in London on 6th December.















Sovarex SA -v- Romero Alvarez SA


[2011] EW8C1661 (Comm) - Queen’s Bench Division Commercial Court - Hamblen J

Brian Taylor of Ashfords LLP acted for Romero Alvarez SA. 

The Commercial Court held, in the context of enforcement of an arbitration award of a FOSFA Tribunal, that the Court has the power to direct that there be a determination of disputed issues of fact under the Arbitration Act 1996, and that there was no necessity for that to be done by way of action on the award.



Sovarex applied to the High Court for permission to enforce an arbitration award and to enter judgement in the terms of the award under Section 66 of the Arbitration Act 1996.  The Defendant, Romero Alvarez contested the application on the grounds that:

The award was a nullity as no contract had been concluded between the parties and there was accordingly a real ground or doubt as to the validity of the award; and
Spanish Courts had been asked to consider the validity of the alleged contract prior to commencement of arbitration proceedings, and were therefore seized of the proceedings.  The English proceedings should therefore be stayed.



As to point (i) Mr Justice Hamblen was asked to consider whether Romero Alvarez had lost the right to object to the enforcement of the award by participation in the arbitration.  He held that the only way in which Romero Alvarez took part in the arbitration was to send a number of communications to the tribunal stating that there was no contract and informing the tribunal that it had commenced proceedings in Spain. Hamblen J held that the communications were no more than protestations as to the jurisdiction of the tribunal and it had not participated in the arbitration.  It was therefore entitled to object to the award being enforced.

Mr Justice Hamblen went on to consider whether Romero Alvarez’ contention that there was a real ground for doubting the award was valid.  If so, summary enforcement procedures under Section 66 of the Act were inappropriate and Sovarex should be required to commence a separate action on the award.  He held that although the present application under Section 66 of the Act involved disputed issues of fact, there was no reason why Section 66 of the Act did not prevent Sovarex seeking to enforce the award.  He said that if a party was required to effectively start proceedings again by way of an action on the award, this would be a waste of time and costs and would be contrary to the CPR overriding objective.

As to the second issue, Hamblen J noted that the current position in relation to the Spanish proceedings was that the Spanish courts had dismissed Romero Alvarez’s action, although it  had since appealed.  However, as things were, there could be no determination as to the validity of the contract in the Spanish courts.  Accordingly, there was no duplication of proceedings and no issue under EC regulation 44/2001 on the Jurisdiction and Recognition and Enforcement of Judgements in Civil and Commercial Matters.

Comment
This judgement confirms for the first time that factual issues including issues relating to the existence of an arbitration agreement can be determined under Section 66 of the Arbitration Act 1996.  Where the award debtor seeks to raise objections to the tribunal’s jurisdiction at enforcement stage, this can be dealt with as part of a summary enforcement procedure and there is no need for the award creditor to proceed by way of an action on the award. 



Mr Justice Hamblen’s reasoning on the issues relating to the Spanish proceedings seems to have been influenced by the fact that the English court was the court of the seat of arbitration and was the proper court to determine the existence or otherwise of the arbitration agreement.  This is in line with a proposal to amend the Brussels Regulation to require courts seized of a dispute to stay proceedings in favour of  an arbitration tribunal or the courts of the member state.  His reasoning also appears to be based on the New York Convention which dictates that there is no presumption in favour of the validity of the award with the burden of proof resting on the party resisting enforcement, and there is discretion to refuse enforcement in deference to competing proceedings at the seat of the arbitration.

Written by: Brian Taylor







VAT and Marine Leisure : Member State Discord in the European Union




There have been a number of changes to the tax and customs legislation relating to superyachts since the end of 2010. Most recently there have been rulings by the EU on the Spanish Matriculation Tax and the French Commercial Exemption.

Spanish Matriculation Tax
The EU Commission has dismissed the Spanish Matriculation tax as unlawful. However, there are indications that this is not the end of the matter.

Matriculation tax is levied at 12% of a yacht’s value, and is applied to pleasure yachts registered in Spain or used in Spanish waters by residents.






It also affects commercial yachts with foreign flags but which have a base in Spain or are used temporarily by Spanish residents in territorial waters. 

This practice has been criticised by the Spanish marine industry, arguing that it is preventing the development of charter activity in Spain and that it contravenes the EU principles of free movement of people and free movement of services.

In September 2011, the Commission issued a preliminary response to the question of whether the tax has breached EU legislation. It deemed the tax to be an unlawful infringement of the principle of free movement of the provision of marine services. The Commission recommended that future taxation should be proportional to the time that the yacht is available for charter in Spanish waters. The official response from the Commission is still awaited.

French Commercial Exemption
Since May 2004, France has applied a VAT exemption for all commercial vessels (including commercial yachts) providing certain conditions were met.

It provided a number of advantages to EU and non-EU yachts, including enabling non-EU yachts to be customs cleared without paying VAT on import into the EU, duty free fuel supplies, a VAT exemption on supplies of goods and services to the yacht and on charters.

In March 2010, the EU Commission started infringement proceedings against France. It was subsequently decided that the French legislation was contrary to European Union VAT law. In particular, it  did not include the condition that the vessel must be used “for navigation on the high seas” in order for the exemption to apply, thus widening the scope of the exemption.

Accordingly, in January 2011 the French legislation was amended, but as there was no definition in French Law of the “High Sea” the industry was unclear on how this would be interpreted. The French authorities issued an “administrative interpretation” in February 2011, effectively confirming it would apply if the previous criteria were met. Thus the French Commercial Exemption would continue to apply, unchanged.

The EU Commission has recently issued a press release announcing its decision to bring an action against France in the European Court of Justice. This will oblige France to give a clear interpretation of “navigation on the high seas.” Although, this is likely to narrow the exemption considerably, the decision is not imminent and until then the exemption will continue to apply.   

Summary
VAT exemption is interpreted differently from one Member State to another. However, it appears that the recent Commission rulings, together with other changes, show that it may become increasingly difficult for yacht owners to benefit from VAT exemptions.

Written by: Rachel Stebbing






The ‘Rainy Sky’

The Supreme Court has finally ruled in the long outstanding issue of Rainy Sky S.A and others -v- Kookmin Bank in favour of the Greece based ship owner Metrostar. Accordingly its claim for payment of just over US $46million plus interest under a refund guarantee issued by the Korean “Kookmin” Bank was upheld.

This very long running dispute related to the refund of pre-delivery instalments paid to a Korean shipbuilder under advance performance bonds (refund guarantees) following an application by the builder for protection from his creditors under the Korean Corporation Restructuring and Promotion Law 2007.

The case turned on the construction of the guarantees which contained two conflicting provisions. The first guaranteed repayment of “all sums due ….. under the contract” - which plainly included sums repayable in the event of insolvency. The second provided - albeit in a separate paragraph - that the refund could only be claimed from the Defendant bank in the event of rejection of the relevant vessel, total loss or “termination, cancellation or rescission of the contract”. 

The determination and construction of these clauses came in the first instance before Mr Justice Simon, who found that “all sums due … under the contract” was clear and unambiguous wording and that therefore the bank’s construction had the surprising and uncommercial result that the buyers would not be able to call on the bond on the happening of an event which would be most likely to require first class security. That in his view was wrong. 

Unsurprisingly the bank appealed this decision and although Sir Simon Tuckey in the Court of Appeal agreed with Mr Justice Simon and pointed out where there are two possible constructions of a contract the Court is entitled to reject the one which is unreasonable and, in a commercial context, the one which “flouts business sense”,   Pattern LJ, who delivered the majority judgment, allowed the appeal on the basis that unless the natural meaning of the words produced a result which is so extreme as to suggest that it was unintended, the Court has no alternative but to give effect to its term.  On this basis he did not agree that the bank’s construction of the bonds was uncommercial as there might have been any number of reasons why the builder was unable or unwilling to provide the bank cover in the event of its insolvency.

This decision was not received well in the market place and there was a sense of frustration that an uncommercial interpretation of the bonds earned favour with the Court.

However, when the matter arrived in the Supreme Court, Lord Philips (supporting the original order of Mr Justice Simon) stated that the Court was bound to follow the natural meaning of the words unless the result was “so extreme as to suggest that it was unintended”.  It followed therefore that the buyer’s construction was to be preferred because it was consistent with the commercial purpose of the bonds in a way which the banks construction was not; accordingly it was possible, despite the insolvency provisions, to reclaim sums due under the refund guarantees. 

The case is important because it confirms that English Courts will generally have appropriate regard to commercial matters and where there are two arguable constructions of a clause it  is much more appropriate to adopt the more, rather than less, commercial construction. Of course, the main lesson to be drawn from this important case is that clear and unambiguous drafting in refund guarantees (and other contractual obligations) should prevent such protracted litigation that took place in this case.

Written by:  Charles Hattersley, a Partner in the Marine Department of Ashfords’ LLP.









Arbitration Service




The costs of attending Court to resolve disputes continue to rise notwithstanding the time it takes for a reasonably straightforward matter to be listed.

Sending papers out to be dealt with by arbitration (particularly for insurers’ claims teams, especially when one insurer covers both sides, an increasingly common occurrence with the consolidation in yacht insurance in recent years) can be cost effective and less time consuming than spending weeks arguing over a claim and then sending papers to solicitors for advice/action.

Ashfords LLP’s marine department can offer a cost-effective and speedy way of resolving disputes.  Jonathan Hadley-Piggin specialises in the yachting sector, is a qualified arbitrator and has arbitrated a number of yacht related disputes such as collision, damage claims, negligence and contractual issues. 

This service is particularly suitable for lower value, more straightforward matters where the use of solicitors would soon outweigh the amounts in dispute.
The arbitration service would be based on a full and legally binding arbitration award based on papers alone, without the need for a hearing or lengthy correspondence, and the Award would be published within 14 days of receipt of papers. 

Our fee for providing this service is £1000 plus VAT for claims under £6,000 (split between the parties or according to liability) and for claims above this an agreed figure based on  the amount of evidence provided.

Written by:  Jonathan Hadley Piggin, a partner in the Marine Department of Ashfords’ LLP













Ashfords LLP offers Conditional Fee Arrangements for Marine Litigation




It is becoming more and more common in the marine market to find that, following a major contractual dispute or a disastrous fixture, a shipowner or charterer has a good claim that is frustrated by lack of funds and aggressive threats of security for costs from his opponent. In addition to these problems, clients have often had difficulty in obtaining access to justice. In the event a lawyer is appointed it is very common that, having set out the detailed merits in a letter of claim, it is summarily dismissed by the opponent’s lawyers without any consideration of the merits. The claim is met with a simple denial and threat of an application for security for costs in huge and unjustifiable sums if litigation or arbitration is commenced. If the matter is to proceed the injured party is then asked to find huge sums to cover his own and the other side’s legal costs. This is often enough to stifle the claim.

In order to meet this we are pleased to announce that we have negotiated a delegated authority scheme with a major After the Event broker, and are now in a position to offer a quick and speedy service on a Conditional Fee basis to appropriate marine clients. In addition it is also possible to offer Third Party Litigation Funding through a major funder (usually for claims in excess of £1Million).

For those not familiar, CFA is a funding arrangement whereby the fees payable to your solicitor are lower, or more often nothing, if the case is lost. If the case is won, a success fee is payable in addition to normal fees by the losing party. It is not a percentage of the sum awarded and the uplift is paid by the paying party. This applies to arbitration as well as court proceedings.

After The Event insurance (“ATE”) provides cover if a case is lost, as the policy will normally repay the other side’s costs and disbursements together with your own solicitor’s disbursements up to the limit of indemnity.

Very importantly, The ATE Insurance policy often insures its own premium, meaning the client may have has nothing to pay if their case is lost.

Third Party Litigation Funding may provide for disbursements such as counsel, foreign lawyers, experts, court fees, investigation of assets, arrest or freezing applications and payment of arbitrators interim and final fees.

If you are in the unfortunate position of having a significant claim or unable to have access to lawyers because of funding issues and are interested in such an arrangement please contact Charles Hattersley or Brian Taylor. We will then look at the prospects of success, assess the risk and advise you whether we are willing to act on this basis.










 Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them. 










]]>