Members of pop group Duran Duran are ‘shocked’ and ‘saddened’ by the recent loss of a High Court claim regarding the ownership of the copyright of some of their best-known hits.
Almost 40 years ago, Duran Duran entered into worldwide contracts to assign the copyright in songs written or composed by them. At the time of the agreements, the band were said to be aware of a US law which stated that 35 years after copyright had been assigned, a notice could be served demanding that the US copyright be transferred back to the authors.
Duran Duran had served notices under this US law for the copyright in their most famous songs (including Rio and Hungry like the Wolf) to be transferred back to them. The current owner of the copyright commenced proceedings in the UK for a declaration that serving these notices was a breach of the contracts under which the copyright was assigned.
The High Court ruled against the band, confirming that the contracts prevent Duran Duran from exercising their rights under US law to require that the copyright be returned to them.
This case has brought to light an issue that may affect many UK artists looking to remove themselves from long-term contracts that enable music-publishing companies to exploit their song writing rights. Arguably, this judgment sets a dangerous precedent for English law being used to override the rights of UK authors in other countries.
The converse argument is that if parties freely enter into a contract in which they agree that their copyright worldwide should be assigned to a third party; this agreement should be respected and upheld. What this case does demonstrate is the complex nuances in contracts of this nature, and the need for absolute clarity in communication when trying to future proof a contract.

Pannone Corporate’s HR Forum is a free regular update for employers and HR professionals, featuring sessions on employment case law, legislation and topics of interest to those involved in managing a workforce or dealing with HR issues. In our next HR Forum, we will cover:

Conducting a disciplinary investigation: The starting point when it comes to a fair dismissal for misconduct is the test set out in the 1978 case of British Home Stores Ltd v Burchell: the dismissal will only be fair if the employer believed and had reasonable grounds for believing the employee to be guilty of misconduct and, at the time it held that belief, it had carried out as much investigation as was reasonable. That means carrying out an effective disciplinary investigation is a crucial first step in any disciplinary proceedings. In this session, we will look at the essential components of a fair disciplinary investigation and how to overcome some of the more common problems which may arise in practice, including whether to give notice of an investigation meeting, the right (or not?) to be accompanied, when you can suspend, and how to deal with an investigation which involves criminal conduct.

Health and safety – individuals under the spotlight: When an employee or Director is subject to a criminal investigation, a myriad of tough decisions present themselves to a business seeking to complete its disciplinary process. We will look at some of the practical problems that arise, the difficult choices you may face if presented with this situation and the factors beyond your control that might impact the organisation. Led by Rhian Greaves from our Regulatory team, the session will consider the impact of potential individual criminal liability following a health and safety incident but its application will reach beyond to the full range of criminal offences.

Case Law Update: A summary of some of the more important or interesting decisions coming out of the tribunals and courts in the last few months, including the most recent decisions on holiday pay, disability discrimination, and whistleblowing.
Details
When: Wednesday, 1 May 2019
Where: Innside Manchester, First Street, Manchester
Click here for further details
Time: 8.30am registration, 9.00am start, 12pm close
Cost: Free
To reserve your place please RSVP by email to:
paula.kershaw@pannonecorporate-com.stackstaging.com or jo.thorp@pannonecorporate-com.stackstaging.com

Places will be confirmed approximately 14 days before the event.

We look forward to seeing you!

Are you getting stung online?
We’re excited to announce that today, we are teaming up with the British Brands Group to host a free event to help brand owners, retailers and distributors tackle substitute selling across online marketplaces.
The event is being held on the 10th of November at the National Motorcycle Museum, Solihull.
What is substitute selling?
Substitute selling is when an online seller  ‘tags onto’ an existing brand listing but supplies a substitute product rather than the advertised product. The seller takes advantage of the higher ranking of an established brand listing to sell inferior, generic or imitation products at a cheaper price.
The shopper doesn’t receive what they ordered, the brand owner loses sales and brand reputation is undermined by the sale of unauthorised third party goods. Official distributors of the brand also lose out.
Brand owners are reporting monthly losses of tens of thousands of pounds with many commenting that the problem is now too widespread to ignore.
Why attend?
Many brand owners simply do not know whether they are losing sales to online substitutes or, if they suspect, what to do about it. This event will guide you through the practical, commercial and legal issues arising from substitute selling, and offer you a strategy for tackling the problem.
The schedule:

10:00 Registration and coffee
10:30 Welcome
John Noble, British Brands Group
10:45 What is substitute selling and how does it work?
Melanie McGuirk and Sarah Bazaraa, Pannone Corporate LLP
11:15 Case study 1: how to identify the problem
Jake Currier, Bonnington Plastics
11:45 Case study 2: tackling substitute selling in-house
Sam Lucas, R H Smith & Sons
12:15 Lunch will be provided
13:00 The Trading Standards Perspective
Gavin Terry, Chartered Trading Standards Institute
13:30 Litigating in IPEC
Peter Sully, Storage Solutions
14:00 The legal perspective – key lessons
Melanie McGuirk and Sarah Bazaraa, Pannone Corporate LLP
14:30 Tea/coffee
14:45 Working collectively against online substitutes
John Noble, British Brands Group
15:15 Questions and discussion
15:50 Closing comments
16:00 Close
Please email Melanie McGuirk at melanie.mcguirk@pannonecorporate-com.stackstaging.com or telephone 0161 393 9040 for more information.

It has been over three years since the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guidelines were introduced.
To consider the extent to which the Guidelines have met their stated aims the Sentencing Council has recently undertaken an Impact Assessment, which has made the following key findings:

• The fines imposed on all organisations have increased following the introduction of the Guidelines.
• There has been an unanticipated increase in the fines imposed on ‘smaller’ organisations.
• An increasing number of individuals are being prosecuted for health and safety offences, and the fines imposed have increased.
• An unanticipated increase in the level of fines imposed on organisations and individuals convicted of food safety and hygiene offences.
• Fines following conviction for corporate manslaughter have increased.
• Fewer appeals against sentence have been successful.
  Comment
  During consultation it was anticipated that the net effect of the new Guidelines would be to increase the levels of fines imposed, given that fines against organisations were to be primarily based on turnover and not (in contrast to the previous guidelines) universal starting points irrespective of an organisation’s size.
  Whilst this anticipation can be seen to have become a reality, the Impact Assessment reveals unexpected increases in the fines handed down against both smaller organisations and those individuals convicted of health and safety and food safety and hygiene offences.
  Having considered the findings of the Impact Assessment, the Sentencing Council intends to investigate further the operation of the Guidelines, especially its application to smaller organisations and individuals and will consider in due course whether any revisions are necessary.

The fact that fines are on the increase, across the full range of offences caught by the Sentencing Guidelines, perhaps offers little comfort to dutyholders. However, rather than taking the increase as a negative, organisations and individuals should rather treat these figures as an incentive to ensure that health and safety remains a top priority and to motivate them to take whatever steps are necessary to ensure that they do not form part of the figures for the next Impact Assessment.

As Design Manchester came to an end last week, the festival was brought to a close in fitting style with their annual Great Debate.
The theme of this year’s festival, Design City, was reflected in the debate’s topic, “City Identity”. With the referendum result earlier this year the reality of Brexit and its impact on Manchester (and the development of cities everywhere) was a big part of the discussions.
To tackle these topics, the very best of Manchester’s creatives assembled at The Old Granada Studios, a venue steeped in Manchester history. On the panel was Sheffield-based star designer, Ian Anderson; Chancellor of Manchester Metropolitan University, Lord Mandelson; Technology Engagement at The Co-op and Director of TransportAPI, Emer Coleman; the front runner for Manchester’s mayoral election, Andy Burnham; Bristol-based creator of legible cities, Mike Rawlinson and urbanist and designer, Claire Mookerjee.  Chairing the event was magneticNorth’s Lou Cordwell.
Topics of the evening included city devolution and metropolitan mayors in the regions, how data changes our cities, how cities grow and of course the impact of Brexit.  But most importantly, it served as a great opportunity for the design community to discuss the role of design and the creative industries in our future cities.
The greatest outcomes of the discussions surrounded how the people make the cities. Mike Rawlinson suggested city identity relied on people and we should be creating cities around the citizen. He said, “We need to make the sum of our parts greater than the whole…to design cities around people is key as it is more benefiting for everyone.”
It was clear the panel believed digital and tech were the way forward. Lord Mandelson said, “What makes a city doesn’t come from branding or marketing, it comes from the people and the ability to enable its people to be what they want to be…which is chiefly driven by digitalisation. Digitalization will do for our generation what electricity did for others.” But the audience brought forward some good accompanying thoughts, that although tech and digital is what is pushing our cities forward, creativity needs to go hand in hand with that. Emer Coleman agreed, enthusing there should be “an integration of arts and creativity” with tech.
There was great anticipation for this sell out event and the striking venue of St John’s in OGS was a fitting backdrop to the discussions of the night, a building representing both Manchester’s past and future.  The audience helped push the flow of the debate into deeper discussions and really connected to the panel, with many nods of agreement from the audience and even a round of applause for Andy Burnham’s sign off, “If we don’t make this a time of change, when will we?”
Design Manchester has had an incredibly successful 2016 festival and the Great Debate reflected that. We are extremely proud to have sponsored the event and look forward to continuing our support for Design Manchester and the wider creative community.
 

What’s new
This month we look at non disclosure agreements, a proposed extension to the off payroll working regime, new guidance on addressing the gender pay gap, and the new limits for tribunal compensation. Read more >

Case law review

Does a suspension have to be necessary?
In the case of Agoreyo v London Borough of Lambeth, the Court of Appeal held that the suspension of a teacher in the context of a misconduct investigation did not amount to a fundamental breach of contract. Read more >

Previous warnings in unfair dismissal claims
In Beattie v Condorrat War Memorial Social Club, the Employment Appeal Tribunal considered whether the fairness of a previous final written warning could be re-examined as part of an unfair dismissal claim. Read more >

Asserting a ‘future’ breach of a statutory right cannot be the basis of an automatically unfair dismissal claim
In Spaceman v ISS Mediclean Ltd (t/a ISS Facility Service Healthcare), the EAT gave guidance on the scope of the protection from dismissal afforded to someone who has asserted a statutory right. Read more >

Pannone Academy!

Pannone Academy offers a range of employment law and HR courses designed to help companies ensure they operate within the law, with a clear focus on prevention rather than cure. More details can be found online at https://www.pannoneacademy.com/

Dismissal due to employer’s religious belief was not direct discrimination
In Gan Menachem Hendon Limited v De Groen the Employment Appeal Tribunal found that less favourable treatment due to the religion of the employer was not direct discrimination, and considered whether it made a difference that both employer and employee were of the same religion. Read more >

On Wednesday 19th October, the cream of creative Manchester is gathering in The Bonded Warehouse, St John’s, on the site of the Old Granada Studios next week to shape a positive future in Theresa May’s post-Brexit Britain. Key to that, they say, is city identity: not only for Manchester, the poster city for devolution, but for cities across the north and elsewhere in the country.
Design Manchester, a non-profit that speaks for the design community and organises the city’s annual design festival, is using its third Great Debate to discuss the role of design and the creative industries in our future cities, and sees the event as an opportunity for the sector to discuss its evidence to the House of Commons Select Committee on Culture Media & Sport’s enquiry into the impact of Brexit on the creative industries, tourism and the digital market.
At Pannone Corporate, we recognise the importance of choices made in the coming months with regards to Brexit. With all the public confusion leading up to the referendum, it’s more important than ever that we discuss and debate the potential consequences of legislative changes in an open and honest forum. As a major contributor to the UK’s economic future, the creative industries, particularly in Manchester, need to be in this discussion. This is one of the reasons we are supporting Design Manchester as a key contributor and as a sponsor of The Great Debate event.
The team are also looking forward to discussions on a variety of other city related topics including the public realm, architecture and transport, city devolution and how data is changing our cities.
Covering these topics, will be an expert panel including former EU Trade Commissioner Lord Mandelson, front-runner of Manchester’s mayoral elections Andy Burnham and Sheffield based star designer Ian Anderson. The debate will be chaired by CEO of digital design studio magneticNorth, Lou Cordwell.
We’re looking forward to the debate and will be sharing our highlights from the day on our Twitter page, so keep an eye out for that.
 

It is easy to fall into the trap of believing that estate planning “is only for the wealthy”. However, most people want to ensure that their home, savings or other belongings of value pass to the right people in the right way and at the right time. A properly drafted Will ensures that your assets are available to benefit the people you choose and that if necessary, are protected for the future.

Below are some common traps clients fall into:

Not Planning

This sounds obvious, but one of the most common estate planning mistakes is to not have a Will at all. This usually has undesirable tax implications and often means that your assets will not pass onto the people you want them to. Death does not always come when expected, so it’s important to prepare as early as possible. This will ensure that your personal and financial affairs will be handled according to your wishes when you pass away.

An Outdated Will

Marriage, divorce and changes in relationships mean that many people’s Wills become invalid or unenforceable without them realising or making a new Will. We advise clients to review their Will every five years to ensure that it remains appropriate.

Inheritance tax (IHT)

Many clients fail to appreciate the impact of inheritance tax and miss out simple steps such as making lifetime gifts (outright or to trust) or structuring their Will appropriately to minimise IHT. Specific opportunities exist in relation to clients with business assets. Specialist advice is always required to mitigate any tax payable. A worse mistake is deciding yourself without the benefit of advice to make gifts. For example, many clients give away their home and continue to live there, not realising that it is not only useless from an inheritance tax perspective but also creates other significant tax problems and increases the amount of tax payable overall.

Second Marriages

Children from first marriages often get disinherited because assets have passed to a stepparent first.  A properly drafted will can enable you to provide for a spouse during his or her lifetime whilst still making sure that on their death your estate passes to your children and not anyone the spouse may choose to leave it to.

Not Updating Asset Ownership

It may be that you own some assets in your name, and some in joint ownership with your spouse, your children, or someone else. Every now and again, it’s crucial to review your plans. Perhaps there have even been changes in the law that make different ownership a better option. Many people should review their plans to see if they still relevant to their current situation. It’s one of the biggest estate planning mistakes that is easily avoided.

Powers of Attorney

Failure to make a Power of Attorney in time means that clients will not be able to choose who handles their estate if they are unable to do so themselves. Choosing the right person for this role can have a significant impact on how assets are protected for the next generation.

Picking the Wrong Executor!

It is vital that you trust your executor(s) to deal fairly, practically and cost-effectively with your estate and avoid any possible disputes which can give rise to significant delay and legal costs. Picking the wrong executor is one of the biggest estate planning mistakes as it could have an irreversible impact on your assets, which can bring additional stress to an already painful time to your family. It’s important to thoroughly research your options before making a decision.

Our specialist Estate Planning Team ensure that our clients deal with all of the above issues in good time and minimise the overall cost of inheritance tax and legal fees relating to death and the transfer of assets to next generations. For more information to help you avoid estate planning mistakes, don’t hesitate to contact us today.

Earlier this month, we held our annual In House Lawyers Conference in partnership with BCL.
We had a fantastic day filled with speakers and workshops that challenged us to think differently about familiar topics and asked us to consider the practical impact of major legislative changes on the sector and society at large.
Our first speaker, Aidan Robertson QC of Brick Court Chambers, conducted a fascinating and informative discussion on Brexit. Aidan covered key questions such as the timetable for withdrawal, what laws and trade deals will replace EU law and the practical consequences for businesses in enforcement of rights. His talk helped to breakdown the ins and outs of the complex piece of legislation that is likely to have a dramatic effect on the way we trade goods, capital and services.
After the talk, we were keen to find out more and share his insights with a wider audience, so we grabbed him for a quick coffee and a chat. Here’s what he had to say:
Hi Aidan. An interesting talk! Could you tell us a little more about what you consider to be the realistic timescales of Brexit and what could be the legal implications of this?
I would expect the government to trigger the Brexit negotiations under Article 50 of the Treaty on European Union early in 2017, meaning that the UK would leave the EU in the first quarter of 2019. It seems to me that the EU Parliament Elections in May 2019 provide an obvious deadline by which the UK should no longer be an EU member.

This is subject to judicial review challenges in the High Court in Belfast and London and a likely Supreme Court hearing before Christmas as to whether Parliamentary approval to trigger Article 50 is needed – in my view, it is not.
What do you anticipate will be the biggest issues the UK will face in the wake of Brexit?
I expect the EU and UK to reach a workable agreement on trade in goods, capital and services, although the latter issue poses some challenges, in particular in the field of financial services.

In my opinion, the biggest issue is not so much the substantive rules on trade post-Brexit, but the enforcement of those rules. Unlike EU law, which has direct effect and so the full range of legal remedies are available in every national court throughout the EU, the new trade deal will operate at the level of international law. This means that it will not have direct effect (see Polydor v Harlequin Records 1982) and so any remedies will have to depend on what the trade deal provides.

It may involve claims for compensation under Investor to State Dispute Settlement provisions, but these involve arbitration rather than court proceedings and are unlikely to provide anything as effective as the current remedies under EU law.
How did your audience react to the subject of your talk? What kinds of questions did it raise?
Issues around Brexit are of relevance to any business trading with the rest of the EU, so there was a good response from a wide range of audience members.

One question I was asked was what the position would be with claims for breach of EU law where the events took place before Brexit but the claim was not brought until afterwards. I explained that UK limitation periods for civil claims (six years in England, Wales and Northern Ireland, five years in Scotland) would enable claims to be brought after Brexit. The position would be different for challenges to government action as being inconsistent with EU law, because the judicial review time limit is much shorter – claims must be brought promptly and in any event within 3 months.

Importantly, post-Brexit, English courts will have to decide on issues of EU law for themselves, as the option of making a preliminary reference to the Court of Justice of the European Union for an advisory ruling currently provided for by Article 267 of the Treaty of the Functioning of the European Union will no longer be open.
What did you think of this year’s IHL? How important are conferences like this?
This was an excellent opportunity for in-house lawyers to gather and discuss issues of mutual interest, both on ‘big picture’ matters such as Brexit and also on the more ‘hands on’ issues covered in other sessions. I was impressed by the high turnout for the conference, which was a practical demonstration of its importance.
Thanks Aidan – hope to see you again next year.

Inheritance Tax is often viewed as the most invidious tax as it is paid on value accumulated over a lifetime which has already been taxed as it has been earned.. People object to their life savings or family home being passed to the taxman.  

A properly drafted Will can often minimise the impact of Inheritance Tax and ensure that the minimum amount of tax is paid overall taking into account all the relevant family circumstances.  The use of trusts can also ensure that wealth is preserved for the next generation and that assets are retained within the family rather than being diverted or diluted amongst non-family members.

There are also ways of minimising Inheritance Tax during your lifetime including the use of annual allowances, lifetime gifts and a useful exemption known as “regular gifts out of income”.  This allows a person to give away any amount of income which is surplus to his or her requirements. There are a few traps in this exemption so specialist advice needs to be taken and a paper trail needs to be put in place to ensure that the exemption can be claimed on death.

Life assurance can also help to mitigate the impact of any Inheritance Tax.  For example, where a client is not married, life assurance can be essential in ensuring that any surviving partner can continue to live in the home without having to sell it to pay a tax bill.

The establishment of trusts for children and grandchildren can allow you to retain control over assets as a trustee whilst taking value out of the Inheritance Tax net.  Specialist trusts and tax advice is needed to ensure that structures are workable and tax efficient.

Yesterday the new edition of the industry guide, Legal 500 was released and we were delighted to be recommended in 17 practice areas. We are a young and ambitious firm and to be independently recognised in this way is testament to the quality and dedication of our team as well as our client focussed culture.
We have been recognised across a diverse range of legal disciplines which include corporate and commercial, EU and competition, commercial litigation, debt recovery, insolvency and corporate recovery, employment, health and safety, professional negligence, charities and not-for-profit, contentious trusts and probate, commercial property, construction, property litigation, IT and telecoms, intellectual property, media and entertainment and transport.
We’re looking forward to more reasons to celebrate as we move into our third year of business!
To view our rankings and leading individuals please click here for more details: http://www.legal500.com/firms/4091/offices/6633

Increasing international mobility means that many more clients own assets outside the UK or have beneficiaries resident outside the UK. This needs to be taken into account when making wills as it is important to consider the tax position in different jurisdictions and ensure that a will works effectively in each jurisdiction in which the client holds assets. “Forced heirship” provisions in many European countries will need to be considered.  Planning properly ensures that all these issues are dealt with so that cost and delay following a death are minimised.

Wills need to cross refer to each other and operate independently and concurrently with each other. It is important for a solicitor who specialises in cross border estate planning to look at all the Wills together and to liaise with the lawyer in other jurisdictions to ensure that a coordinated approach is adopted. All too often, clients make Wills in different jurisdictions without the oversight of a specialist estate planning lawyer, with the result that Wills can revoke each other or refer incorrectly to the property they are seeking to dispose of.  This causes confusion, cost and delay in the future and can even result in assets passing to the wrong people.

When thinking about property overseas or beneficiaries in different countries, it is important to consult a specialist solicitor who is familiar with dealing with lawyers in different jurisdictions and can identify any relevant tax or legal issues, which are likely to cause problems in the event of your death. A coordinated approach will ensure that the minimum amount of tax is paid and that assets are passed to the correct beneficiaries.

With all the garden furniture packed away and the days beginning to shorten we wanted to reflect on the positive stories from Plot.
It was lovely to see so many people using the garden for meetings, informal gatherings and the occasional bit of relaxation in the sun.
We’ve had great fun taking some of our meetings and team events outside. The feedback from staff and clients has been very positive and it’s been nice to do something different over the summer.
My colleagues Val Beck and Katie Kennedy who were part of the Plot team said “It’s been really rewarding working on Plot and we enjoyed being part of the Plot team. It was a good opportunity to meet some of our clients and contacts and get out in the sun (well sometimes!). We hope to be involved next year when Plot returns to Pannone Corporate”.
Finch Insurance Brokers were one of the many organisations who used Plot for a team event. Mike Latham of Finch commented “Our team found the whole experience refreshing and it really added to the energy of the meeting. We greatly appreciated the opportunity to use it and would like to do so again.”
We’ve already had lots of request for Plot to return, so if anyone has any ideas for what they would like to see in the future, please let us know. We’re always open to new ideas.

We all need to make a Will before we pass away. That way, we can ensure our wishes are carried out, and that the right people receive the right assets. However, there are some instances where friends or family members may wish to challenge the Will.

What is Contentious Probate?

In summary ‘contentious probate’ is where a party either seeks to challenge or defend the provisions of an individual’s last will and testament (Will).

An individual can either make a Will, in which case his or her assets will pass in accordance with the Will, or an individual can leave no Will in which case his or her assets on death will pass in accordance with the Intestacy Rules. An individual can seek to challenge the distribution of the deceased’s assets either under the Will or the Intestacy Rules. 

When is a Will Invalid?

When it comes to what is contentious probate, a Will can be found to be invalid (i.e. its provisions can be ignored) in certain circumstances, as follows: –

1. The testator did not comply with the requirements of the Wills Act in signing his Will and having his/her signature properly witnessed.
2. The testator lacked the sufficient mental capacity required to validly make a Will.
3. The testator did not understand that he/she was making a Will and therefore lacked the relevant knowledge or approval required.
4. The testator was unduly influenced in making the Will i.e. he was coerced against his/her wishes to make the provisions in the Will.

Such actions to challenge a Will are referred to as ‘contentious probate’ actions. What is contentious probate going to affect in terms of the Will? Well, this completely depends on the circumstances.

Another way in which the provisions of the testator’s Will or the distributions under the Intestacy Rules can be amended is if an individual seeks to bring a claim under the Inheritance (Provision for Family Dependants) Act 1975. This entails an applicant stating that they have not been left reasonable provision either under the Intestacy Rules or under the testator’s Will.

Dealing with contentious probate issues is incredibly stressful for all the parties involved. Bringing or defending such claims often follows quickly after the loss of a loved one when emotions are understandably running high. It is important for advisors to deal with such matters as quickly and as empathetically as possible. Court proceedings should be a last resort due to the unnecessary stress and costs of litigation. Advisors should seek to take the emotion out of such matters focusing rather on identifying the issues in dispute and seeking practical solutions as soon as possible. Mediations, where the parties meet to try to reach a settlement, are particularly effective in such cases.

If the issues are identified clearly and concisely at an early stage then a practical solution should be able to be found relatively quickly and without the need for Court proceedings.

If you’d like more information about how Pannone can help you, please don’t hesitate to get in touch.

On Thursday, 8 September 2016, we are holding our annual In House Lawyers Conference jointly with BCL at the Innside Hotel next to Manchester’s new development, Home. The Conference is always well attended with in house legal teams from a wide range of well known businesses across the Greater Manchester area coming to keep up to date on legal developments.
The program is designed to give in house lawyers practical advice on key legal matters and case law, and to provide information and guidance on any recent changes in the law. The event runs from 10am to 3pm and is a combination of seminars and workshops. Delegates can select their preferred two workshops from the four provided depending on the relevance to their practice area.
The workshops this year include interactive sessions on the topics of TUPE, an update on recent developments in contract law, renewing occupational leases on favourable terms and effective negotiation.
The last workshop is being presented by Dr Karl Mackie, one of the best known commercial mediators in the UK, identified by The Lawyer as one of the top 100 most influential lawyers and founder CEO of CEDR (the leading mediator provider). The workshop is based on Karl’s experience of being called in to assist with disputes arising from ‘failed’ negotiations or problem scenarios that require more complex negotiation skills.
The Conference opens with a presentation by one of the leading Queen’s Counsel in EU and competition law, Aidan Robertson QC of Brick Court Chambers, who will explain some of the legal consequences of Brexit.
Following a presentation on the incoming Data Protection Act Regulation and what in house lawyers need to know, the Conference closes with a session by Alison Ewing, Associate Director at Grant Thornton, who will present on the well received topic of what to look for when reviewing financial statements, including guidance on interpreting accounts to draw conclusions about a business. Entries which cause concern and ‘red flags’ will be examined, in addition to how the selection of accounting policies can impact the accounts.
If you are an in house lawyer and would like to attend the Conference, please get in touch.

“The way we make, use and throw away our clothes is unsustainable”.  So begins the recent report, “Fixing Fashion” published by the House of Commons Environmental Audit Committee (EAC).  In a blistering attack, the report laments our growing obsession with fast fashion and the health, safety and environmental impacts this is having around the globe.

Vital statistics

The garment industry is reportedly the third largest manufacturing sector in the world.  UK shoppers buy more clothes per person than any other country in Europe with the domestic industry worth £32 billion in 2017, growing at a rate of 1.6% higher than the rest of the economy.  Fuelled by celebrity endorsed social media campaigns and the growth of online retail, fashion’s performance has outstripped even high-tech sectors in recent years.

But behind the success story lurks an apparently less commendable reality with textile production understood to contribute more to climate change than the international shipping and aviation industries combined.  Most of the effects are felt in developing nations, which welcome the jobs but are ill-equipped to deal with the consequences. With global apparel consumption projected to rise by 63% by 2030 – the equivalent of more than 500 billion additional t-shirts – things have to change.

The report

Having heard evidence from a range of industry stakeholders, the EAC published its report on 19 February 2019.

The tenor of the report is plain from the opening summary, which talks of an industry which has, “marked its own homework for too long”.  Voluntary schemes and self-regulation are said to have failed, with the report calling for a tougher Government stance.

The outcomes

The report set out a list of very clear recommendations.

Health and safety:-

• “Made in the UK” should be a badge representing workers who are paid at least the minimum wage in safe workspaces.  The EAC heard evidence of serious health and safety breaches and urged retailers operating internationally to sign up to Global Framework Agreements that implement the highest standards across their operations, regardless of local laws.

• Concerned about the occupational health implications of working with microfibres, the EAC recommended the Health and Safety Executive be asked to review the available evidence on the attendant risks and take action accordingly.

Modern slavery:-

• There is “a strong case” for the Modern Slavery Act 2015 to be strengthened, a view shared widely beyond the confines of the report. Current requirements to publish modern slavery statements are not monitored so there is no way to ensure the action is actually taken.  The EAC recommended a publically accessible list of all retailers required to publish statements supported by an appropriate penalty for non-compliance.

• The EAC advocated the amendment of the Companies Act 2006 to include explicit references to “modern slavery” and “supply chains” with statements on the approach to human rights in this context becoming mandatory.

• Large retailers should also be required to perform due diligence checks across their supply chains to ensure products are created without forced or child labour.

Environmental measures:-

• A joint Government/industry approach is needed to trace the sources of raw materials in order to tackle social and environmental abuses. The EAC was almost incredulous that technologies widely used elsewhere were not being implemented in fashion.  They felt this was, “essential if fashion is to tackle its waste, water, chemical and carbon footprint”.

• The Government was also called upon to facilitate collaboration between fashion and appliance manufacturers to alleviate microfibre pollution, whilst being clear that the buck stops with those making the fibre shedding products. The report suggests the sector has been too reactive; waiting for research to resolve the issue.  Instead, a proactive approach is encouraged.

• The report asks the Government (with industry) to accelerate research into the relative environmental performance of alternative materials, particularly where microfibre pollution may be reduced.

• The EAC is critical of the funding of WRAP (the Waste and Resources Action Programme), which has fallen by more than 80% since 2010. WRAP’s Sustainable Clothing Action Plan (SCAP) is praised but requires adequate funding to achieve its aims.  The EAC recommends that retailers fund this scheme so that its assistance is available across the industry, with contributions set relative to revenue.

• Being committed to SCAP should be seen as a “licence to practice”. The EAC wants to see compliance with SCAP targets becoming mandatory for all retailers with turnover exceeding £36m.

• The Government should reform taxation to reward those designing products with a lower environmental impact, conversely penalising those that do not. This should include investigating whether the proposed tax on virgin plastics due to come into force in 2022 should be applied to textile products that contain less than 50% recycled PET.

• The waste hierarchy requires recycling and reuse before destruction or disposal of products. The EAC recommends banning incineration or landfilling of unsold stock that could otherwise be reused or recycled.

• There is also a recommendation that lessons on “designing, creating, mending and repairing clothes be included in schools at Key stage 2 and 3”. The report alludes to a wider benefit of allowing youngsters to benefit from the satisfaction such achievement brings, “as an antidote to the growing anxiety and mental health issues amongst teenagers”.

• An Extended Producer Responsibility scheme is recommended to, “make fashion retailers take responsibility for the waste they create…and reward companies that take positive action to reduce waste”. A suggested 1p per garment would raise an estimated £35m for better clothing collection and sorting in the UK.

• On a wider scale, the EAC believes that new economic models for fashion are required to reduce material consumption. It recommends use of the tax system to “shift the balance of incentives in favour of reuse, repair and recycling” to support responsible companies.

• In conclusion, the report requires retailers to use their market power to demand higher standards from suppliers to reduce the environmental, social and health impacts of the clothes they produce. Offering rental schemes and repair services are suggestions, along with the provision of customer information about the true source of the clothes on their backs.

In response to the report Peter Maddox, Director of WRAP said:

“While the messages are hard hitting, we are grateful this lack of sustainability is being given such prominence by the EAC. Sunlight is the best disinfectant…and given the fact that only housing, transport and food have greater environmental impacts than clothing, it’s vital these issues are tackled.”

What next?

Attention has focussed on the potential for an Extended Producer Responsibility scheme and the attendant revenue that could generate.  But behind the headlines is a very detailed (and critical) root and branch review of the compliance picture currently evident in the sector.  Whilst the EAC has strong words for the industry, it also criticised the Government, which has been described as “too slow” to act with a myriad of examples given of inadequacies in current arrangements.

It is clear that it will take some time to implement any, let alone all of the EAC’s recommendations. This may be where the final piece of the jigsaw, the consumer, plays a part.  The question is whether increasing awareness of these issues will lead us to hold our fashion brands and retailers to a higher standard when it comes to sustainability and corporate social responsibility?

The full report is available to read here: https://publications.parliament.uk/pa/cm201719/cmselect/cmenvaud/1952/1952.pdf

If you have any queries on the issues raised by this update, please contact Rhian Greaves on 0161 393 9072.

This August, Pannone Corporate is proud to be bringing Plot, the ‘world’s first on-demand garden’, back to Manchester.
Plot was initially launched as part of Manchester’s urban gardening festival Dig the City, from a small rooftop garden on Barton Arcade, the project quickly gained international attention, bringing the idea of the sharing economy to the problem of lack of green space in cities.
We loved the concept behind Plot and were keen to find a way to share the project with our team, clients and contacts.
Over the past few months we’ve been working with magneticNorth, the design and branding studio behind Plot, to create a new version – Plot at Pannone Corporate – in our very own outdoor space at The Chapel, Deansgate.
We’ve had a great time preparing the garden and now that it’s all ready to go, we can’t wait for people to come and enjoy the space as they wish. Whether it’s for a meeting, an informal chat or to enjoy the sun, Plot has been designed to accommodate all kinds of activities.
If you’d like to book your slot at Plot this summer then please get in touch –
Plot@PannoneCorporate.com or (0)161 393 9080.
You can also keep up to date with all the latest activity at Plot on the
Pannone Corporate Twitter page.

What’s new

This month we look at new guidance on age discrimination from ACAS, new rules for itemised pay slips, the annual increase to statutory payments, and a controversial approach to redundancy selection. Read more >

Case law review

Knowledge of disability

When does (should) an employer know that an employee is disabled? That was the question addressed by the EAT in the recent case of Lamb v The Garrard Academy. Read more >

Whistleblowing allegation of defamation

The EAT has held that an allegation of defamation is capable of amounting to a qualifying disclosure under section 43B(1) of the Employment Rights Act 1996 however it must still be a disclosure made in the public interest in order to be a protected disclosure. Read more >

Discrimination comparators

The Employment Appeal Tribunal has found that if a claimant seeks to use an actual comparator in a direct discrimination claim, it is not necessary for the decision-maker in the comparator’s case to be the same person as in the claimant’s case. Read more >

Discrimination burden of proof

In Royal Mail Group Ltd v Efobi, the Court of Appeal has restored the status quo (overturning a recent EAT decision) and confirmed that the initial burden of proof rests with the claimant in discrimination claims. Read more >

Holiday pay and short time working

The European Court of Justice has found that periods of time when no work was carried out due to short-time working, and therefore no pay was received, should not be included in the reference period for calculating holiday pay. Read more >

Pannone Academy!

We are delighted to announce the launch of the Pannone Academy, providing bespoke training courses covering a range of employment law and HR topics. Our courses are designed to help your company ensure they operate within the law, with a clear focus on prevention rather than cure.  More details can be found online at https://www.pannoneacademy.com/

Who to contact:

JACK HARRINGTON

HEAD OF EMPLOYMENT

0161 393 9050

Email Jack

Whether a startup business or one with a longstanding history, some of the most important aspects of your business can be those which are easily overlooked. In addition to those tangible assets that are on the balance sheet, the intellectual property underpinning your business is often of vital importance. In the modern world, intellectual property can be one of the most valuable assets that a company has. Putting in place simple steps to defend it is vital for the continuing success of a business.

1 – Register Everything

First and foremost, registering your intellectual property should be the first line of defence. In the UK, registering a trademark or design right is in most cases very cost effective and straight forward and will assist in the protection of your brand and bespoke products. Inventions which may be commercially successful should also justify the greater costs of registering a patent.

The Intellectual Property Office is the government body responsible for all IP rights in the UK. You can find much helpful information on its website as regards how to register your IP.

Remember, you own the intellectual property if you create something protectable.  If an employee creates something in the course of their employment, the business who employs that employee will own any IP subsisting in the creation. There may be cases where you or your business have bought rights from the original creator or owner in order to make sure that you control them.

2 – Monitor Competitor Behaviour

Keeping a keen eye on the activity in the market is key if you want to spot any misuse of your IP. New companies and new products trying to piggyback on your rights to shortcut the time and cost you have invested in your brand or products can be the easiest to spot, but you may even find cases of long-standing competitors skirting the line of infringement.

Having one individual conduct periodic searches online and in trade specific sources is only a small task, but it can be extremely beneficial if misuse of your IP is uncovered before the infringement becomes material.

3 – Documentation

Comprehensive and thorough documenting and record keeping is one of the best defences when it comes to your IP. In the event that a matter becomes contentious, these documents will comprise the evidence and proof which supports your case. Ensuring such data or documents are dated or time stamped and the author clearly recorded should be a priority in terms of normal housekeeping.

4 – Object To and Challenge Unlawful Use of Your IP

Even with the above best practice put into place, there will always remain a likelihood of your IP being infringed or misused. For this reason, you need to be prepared to defend your business and maintain the integrity of your IP when infringement or misuse is discovered. Sometimes something as simple as a cease and desist letter can work, as many companies or individuals will fear further repercussions or full-blown legal action if they do not explore a resolution of the dispute with you on sensible commercial terms. Injunctions and court action may also be required depending on the severity of the infringement.

Do you need more information or guidance in regards to IP? Contact the Pannone Corporate team today, either on 0800 131 3355 for our Manchester office or by filling out the contact form.

Bradford Teaching Hospitals NHS Foundation Trust has been issued with a fixed penalty notice of £1,250 by the Care Quality Commission as a result of its failure to apologise to a family in a reasonable period of time.
Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 requires regulated providers to, “act in an open and transparent way,” and to notify the ‘relevant person’ (being either a service user or their representative) as soon as reasonably practicable after becoming aware that a ‘notifiable safety incident’ has occurred. The Regulations explain that a notifiable incident in relation to a health service body is:
“Any unintended or unexpected incident that occurs in respect of a service user during the provision of a regulated activity that, in the reasonable opinion of a health care professional, could result in, or appears to have resulted in [either] the death of that service user… or severe harm, moderate harm or prolonged psychological harm.”
In practice, Regulation 20 serves to foster a culture of candour, openness and honesty by obliging regulated providers to:

– Inform service users when something goes wrong;
– Offer appropriate support and a remedy; and
– Issue an apology.

In the case of Bradford Teaching Hospitals NHS Foundation Trust, a baby was admitted to Bradford Royal Infirmary in July 2016. There were delays in diagnosis and missed opportunities in the care that was provided and whilst the Trust recorded the case as a ‘notifiable safety incident’, it did not inform the baby’s family that it had done so or issue an apology until October 2016.
Professor Ted Baker, the CQC’s Chief Inspector of Hospitals, said of the fine:
“The action that we have taken against Bradford Teaching Hospitals does not relate to the care provided to this baby, but to the fact that the Trust was slow to inform the family that there had been delays and missed opportunities in the treatment of their child. Patients or their families are entitled to the truth and to an apology as soon as practical after the incident – which didn’t happen in this case.”
Comment
Whilst the issue of this fine, the first of its kind, is perhaps further evidence that the CQC is increasingly willing to exercise the full range of its enforcement powers in holding providers to account, it is questionable to what extent the fine achieved the general aims of sentencing.
Although the CQC considered that a fixed penalty notice was a proportionate alternative to prosecution in this instance, it is difficult to understand how a low fine (likely representing only a tiny fraction of the Trust’s turnover) can be considered a deterrent to other providers.
In addition, Regulation 20 does not give any indication as to what would be considered to be a ‘reasonably practicable’ time period in which to issue a notification. In the above case three months was held to be too long, but it is not clear if this period was intended to be of universal application, or specific to the facts at hand.
Only time will tell whether the CQC considers fixed penalty notices to be a useful tool at its disposal, or whether it deems it necessary to use its additional enforcement powers, including prosecution, to hold healthcare providers to account. In any event, care providers should consider this an opportunity to review their crisis response systems and to seek further advice if required.

Two weeks after the tragic fire at Grenfell Tower Dame Judith Hackitt, former Chair of the Health and Safety Executive, was commissioned to prepare an Independent Report in respect of building regulations and fire safety. Her final Report was published in May 2018, with the Government’s positive response being provided in December 2018. The Government will consult further on her recommendations from Spring 2019.

Chief amongst Dame Hackitt’s findings was that the regulatory system relating to high rise and complex buildings was not, “fit for purpose,” and that the prevailing culture within the construction sector motivated duty holders to compete in a, “race to the bottom.”

In total the report made 53 recommendations, of which a primary suggestion was the establishment of a Joint Competent Authority (‘JCA’), comprising of representatives from the HSE, local authority building control and the fire and rescue services, which would operate to help identify the relevant roles and responsibilities of duty holders, as well as to drive cultural change amongst regulators, the construction sector and building owners.

A number of other proposals were also made in an effort to clarify the roles and responsibilities of relevant duty holders, and to help improve standards across the entire lifecycle of building construction and usage. For example, the Report proposed to establish a database of all High Risk Residential Buildings (HRRBs), detailing the relevant duty holders for all such buildings, as well as introducing a more robust testing regime in respect of construction materials generally.

Pending implementation, the Government proposes the establishment of a Joint Regulator’s Group to trial the proposed new framework before the introduction of relevant legislation. This will help assess the likely financial and human resource costs of the JCA.

Whilst the Government has agreed, “in principle,” with the majority of the Report’s recommendations, it remains unclear how the JCA will achieve its proposed aims in practice. For example, it is not clear at this stage whether the JCA will be a local or national organisation, if it will be a collaboration between representatives, or whether it will take the form of an entirely new entity. Given the already stretched resources of the HSE and local authorities, questions can also be asked as to how the JCA will be funded.
On a practical level, whilst the Government has stated that it wishes for the JCA to be established, “as soon as possible,” no specific timeframe has been indicated despite it being already 18 months since the Grenfell fire.

The Report states that the JCA will initially only apply to residential buildings of 10 storeys or more, which serves to exclude a large number of buildings, including care homes and hospitals, from its remit. The suggestion also within the Report that there be a greater emphasis on safety at the procurement stage leads to the conclusion that increased costs are likely to be incurred prior to works being undertaken, which may not correlate well with commercial reality and industry norms.

Whilst the recommendations absolutely are to be welcomed and seek to achieve a sea-change within the industry, presently the finer details are lacking. Therefore it will be interesting to observe and consider the responses to the Government’s consultation in due course.
If you have any queries or would like to discuss any of the matters raised, please contact Bill Dunkerley on 0161 393 9087

Since April 2015 the Care Quality Commission (‘CQC’) has been the enforcing authority in respect of regulated care activities and has extensive powers of enforcement, including the ability to prosecute both individuals and corporate care providers which it considers have failed to provide safe care and treatment.

Despite its wide-ranging powers, to date there have been only a handful of CQC prosecutions. However, recent comments by the Commission’s Chief Executive indicate that the organisation is conscious of the low number of prosecutions and is preparing itself to pursue more enforcement activity in the future.

Background
Prior to 2015 health and safety investigations arising out of the operation of care and nursing homes were undertaken by the Health and Safety Executive (‘HSE’), in accordance with its statutory powers.
Genesis for change came with the publication of the Francis Report, commissioned as a result of the failings at Mid Staffordshire NHS Foundation Trust and events at Winterbourne View, where 11 people were convicted of maltreatment of patients following a Panorama expose.

The Report concluded that there was a lack of clarity as to which of the HSE, local authorities or the CQC was the responsible organisation for holding care providers to account. Outside of the Report the care industry perceived a lack of familiarity by HSE Inspectors with the intricacies of day to day care activities, the HSE having more experience of investigating and prosecuting breaches in other industries.
Flowing from the Francis Report, a Memorandum of Understanding was signed by the HSE and CQC which aimed to close the, “regulatory gap,” and clarify the scope and extent of both organisations’ responsibilities.

In accordance with the Memorandum, the HSE continues to be the relevant inspection and enforcement organisation in respect of health and safety matters involving service users with non-registered providers, as well as for matters involving workers, visitors and contractors across all providers. The CQC by contrast is the lead inspection and enforcement body for the safety and quality of treatment provided by those organisations and individuals registered with it.

CQC Powers of Investigation
The CQC’s Enforcement Policy sets out two primary purposes:

1. To protect people who use regulated services from harm and the risk of harm, and to ensure they receive health and social care services of an appropriate standard; and

2. To hold providers and individuals to account for failures in how services are provided.

To achieve these aims, and by way of ongoing monitoring of providers, the CQC undertakes routine inspections of registered providers to assess the quality and level of care being provided, following which a rating will usually be issued and corresponding report published on the CQC’s website. If any failings or breaches are identified then this may, depending on the nature and severity, result in enforcement action.

The CQC’s enforcement powers include:
• warning notices;
• civil sanctions, for example imposing conditions on a provider’s registration, or suspending registration altogether;
• criminal enforcement powers, including penalty notices and prosecutions.

The Enforcement Policy makes it clear that the CQC will only take action which it considers is proportionate to the individual case.

Despite having the ability to prosecute, to date there have been only a handful of prosecutions by the CQC. This can be contrasted with the hundreds of prosecutions initiated by the HSE during the same period. The reasons for this discrepancy are unclear, although it appears that the CQC is conscious that only a small percentage of its investigations result in prosecution.

Winds of change?
In an interview with the Health Service Journal at the tail end of 2018 Ian Trenholm, Chief Executive of the CQC, stated that he was, “keen to do more enforcement,” and that he foresaw, “the number of prosecutions increasing.” He went on to explain that the CQC has hired 11 ‘evidence review officers’ to, “help…with looking at and reviewing the quality of evidence [the CQC] are generating to make sure we can prosecute more people and do that much more effectively.”

Mr Trenholm has explained that it wouldn’t, “distress [him] overly much if we lost a few prosecutions because it would mean we are pushing the envelope.”
The indication that more providers may be prosecuted coincides with an increased willingness by courts to impose significant fines following conviction. Although there are no Sentencing Guidelines which are specific to CQC prosecutions, Guidelines do exist in respect of health and safety offences generally. Although these Guidelines do not expressly apply to convictions in CQC cases, recent experience demonstrates that courts do have regard to them when sentencing at the conclusion of CQC prosecutions.

For example:
• Hillgreen Care Limited was fined £300,000, together with costs of £141,000, in November 2018 for failing to provide an appropriate level of care and protect service users from a resident with a history of sexual assaults.

• Southern Health NHS Foundation Trust was fined £125,000 following the fall of a service user who had accessed the roof of his psychiatric unit.
These are significant fines, with any sums paid being unavailable to be re-invested by the provider in its care services.

Conclusion
The combined effect of the court’s ability to impose large fines, as well as the recent indications from the CQC, could cumulatively be interpreted as painting a bleak picture for registered care providers.
Although it is admirable for the CQC to wish to hold more duty holders to account how this will translate into practice, and whether it will result in more prosecutions as opposed to other forms of enforcement, remains to be seen. In increasingly austere times questions may also be asked regarding the use of public funds to pursue prosecutions which are ultimately unsuccessful.
Rather than being viewed as a worrying period however, duty holders should consider this as an opportunity to review their management systems, general compliance and any perceived weaknesses in their undertaking, so as to minimise the potential that they attract the attention of an increasingly prosecution-minded CQC.

If you have any queries or would like to discuss any of the matters raised, please contact Bill Dunkerley on 0161 393 9087

Uber France SAS (Uber France) is the latest Uber group company to receive a fine from its national regulator, the Commission Nationale de l’Information et des Libertés (the CNIL), following a serious security breach in 2016 that led to the unauthorised access and download of personal data relating to 57 million Uber drivers and customers from across the globe. The CNIL levied a fine of €400,000 on Uber France SAS on 20 December 2018.

Background: In November 2017, Uber revealed that it had suffered a major security breach a year earlier.

A taskforce was set up by the Article 29 Working Party (an advisory body made up of representatives from across Europe) to investigate the breach.

Uber’s responses to a questionnaire issued by the taskforce revealed that hackers had gained access to credentials stored in plain text on GitHub, a development platform used by Uber’s software engineers. Using those credentials, the hackers found an access key (also written in plain text) within a source code file, which the hackers used to access Uber servers and download the personal data.

Security measures: The CNIL found that the data breach would have been preventable, had Uber implemented appropriate basic security measures, such as:

• requiring its software engineers to use a stronger authentication method to connect to GitHub (for example, using a two step authentication process);
• not storing credentials that allowed access to the server in plain text within source code; and
• implementing an IP filtering system to access the servers containing its personal data.

All for one and one for all: The CNIL rejected an argument from Uber France that the CNIL could only impose a fine on the data controller (being, jointly, Uber entities established in the US and Denmark) and not a mere subsidiary of the data controller (i.e. Uber France).

The CNIL cited German case law, which stated that where a business has subsidiaries in various EU Member States, the data regulator in each Member State may exercise its powers in respect of each such subsidiary, even where the responsibility for collecting and processing personal data for the entire territory of the EU belongs to a group company in another territory.

To date, Uber entities based in the UK and Denmark have also received fines of £385,000 and €600,000 respectively in relation to the same breach.

Points to note: The CNIL’s reasoning in its decision to fine Uber France has provided a useful insight into what regulators may deem sufficient in terms of the appropriate security measures a company may be expected to take in order to protect personal data. It also sends a clear message regarding responsibilities in relation to personal data within a group of companies and highlights the fact that businesses with global establishments can be fined in relation to the same breach throughout multiple jurisdictions.

If your business requires advice in relation to its responsibilities under data protection law, please do not hesitate to contact a member of our Commercial Services team.

What’s new

This month we look at new proposals for parental bereavement leave, help for parents and carers in the workplace, and the quarterly statistics from the Employment Tribunal. Read More

Case law review

Restrictive Covenants  

If an employer wants to have any chance of preventing an ex employee from using its confidential information or the customer connections which he or she built up whilst on its payroll to get ahead in a competing business, it must include post termination restrictive covenants in the contract of employment. What happens however when the employee has not signed the contract? This was the issue considered in the recent case of Tenon FM Ltd v Cawley. Read More

When is a resignation not a resignation?

In East Kent Hospitals University NHS Foundation Trust v Levy the Employment Appeal Tribunal considered whether an employee had given notice of resignation from employment, or whether her employer had dismissed when it accepted that notice. Read More

Removal of a contractual travel allowance following a TUPE transfer  

In the case of Tabberer v Mears Ltd the EAT considered whether or not an incoming employer could lawfully discontinue an outdated contractual travel time allowance following a TUPE transfer. Read More

Tribunals can consider contractual terms in wages claims

In the case of Agarwal v Cardiff University and others, the Court of Appeal confirmed that tribunals can determine the terms of an employment contract in the context of a claim for unauthorised deductions from wages. Read More

Who to contact

JACK HARRINGTON

HEAD OF EMPLOYMENT

0161 393 9050

jack.harrington@pannonecorporate-com.stackstaging.com

As we fall back into winter, the clocks change and with its usual annual synchronicity, another set of HSE statistics is published.  This year, as in others in recent memory, we see a largely consistent picture emerge of a nation outperforming its EU counterparts but failing to make any significant inroads into the headline KPIs upon which the HSE report is premised.

The figures typically promote lively debate about what is being done well and where there is room for improvement; and rightly so.  But away from the headline rates, there are already signs of change.  Whilst too early to found firm conclusions, they perhaps betray a changing and more open reporting culture which, if true, is to be welcomed.

The headlines

The “key facts” for 2017/18 remain largely unchanged from last year:-

• 4m cases of work related ill health (up 7%)
• £9.7bn annual cost of new cases of work related ill health (no change)
• 6m non-fatal injuries to workers (no change)
• 7m lost working days (down 1.6%)
• 144 fatal injuries to workers (up 5%)
• £5.2bn annual cost of work related injury (down 1.8%)
• 6m cases of work related stress, depression or anxiety (up 20%)
• 4m working days lost to work related stress, anxiety or depression (up 23.2%)
• 493 cases concluded resulting in conviction (down 16%)
• 11,522 enforcement notices served (down 3%)
• Conviction rate 95% (no change)
• Total fines collected £72.6m (3.9% increase)
• Average fine per conviction £147,000 (up 16.7%)

Away from the headlines

We have seen a relatively consistent picture emerge over the past five years and many of the key performance indicators have, more or less, flat lined.  Whilst debate will no doubt ensue as to how we might do things differently to kick start another improvement in performance, we should not lose sight of the fact that, as a nation, our accomplishments in health and safety are outstanding when compared internationally.  For example, amongst EU counterparts, we have consistently the lowest fatal injury rate within the large EU economies.

Away from the static headlines though, there are some areas of flux:-

• This year saw a 20% increase in cases of work related stress, depression or anxiety. These are estimated self-reporting figures based on the Labour Force Survey, as these conditions are not reportable under RIDDOR.  However, one wonders whether work is actually becoming more stressful or whether we have moved to an environment in which individuals who previously felt unable to speak up, now feel sufficiently emboldened to do so?  Certainly the visibility of conversations surrounding mental health in the workplace has been welcomed but is this a sign that they are having the intended positive effect?

• The data underlying those figures also shows that reports from women in virtually all age groups is higher both that the average across all persons and the level in the previous year. Is this an indicator of an actual disparity in incidence rate between the sexes or a greater willingness on the part of women to now report?

• There has been a 16% drop in the number of HSE cases prosecuted and resulting in conviction during the year. Whilst the conviction rate remains constant at 95%, it seems likely that the continuing squeeze on HSE resources is impacting upon the enforcement activities undertaken.  This is perhaps supported by the 6% drop in Improvement and Prohibition Notices served.

There has been a modest increase in the total fines collected, up 3.9%.  Whilst this suggests the judiciary are hitting their stride with the Sentencing Guidelines, it is worth reflecting on just how far we have come in the past few years.  In 2014/15 the average fine per offence was £29,000.  The figure for 2017/18 stands at a staggering £147,000, an increase of more than 400%.

What does the HSE say?

Commenting on the release, Martin Temple, HSE Chair said, “These figures should serve as a reminder to us of the importance to manage risk and undertake good health and safety practice in the work place.

“Great Britain’s health and safety record is something we should all be proud of, but there is still much to be done to ensure that every worker goes home at the end of their working day safe and healthy.

“Collectively we must take responsibility to prevent these incidents that still affect too many lives every year, and continue to all play our part in Helping Great Britain Work Well.”

Whatever your view on the statistics, these are sentiments we can all get behind.

If you have any queries or would like to discuss any of the matters raised, please contact Rhian Greaves on 0161 393 9072.

.

The Court of Appeal has ruled that an employer can be held vicariously liable for the criminal data misuse of individual employees. This decision highlights the broad, sweeping nature of vicarious liability and increases the need for employers to insure against large legal claims.

What is vicarious liability?

Vicarious liability holds employers legally accountable for the wrongdoing of employees during the course of an individual’s employment. It is a form of strict liability, meaning the employer need not be at fault for liability to be established. More recently, the courts have adopted a broad, sweeping test, where any action that is ‘sufficiently connected’ to the ‘field of activities’ of an individual’s employment can render the employer liable.

Morrisons Supermarkets v Various Claimants

This case concerned a begrudged senior IT internal auditor employed by Morrisons who, after being disciplined at work, decided to take home the data of 100,000 employees and place them online. His employment meant he was entrusted with this data, and his misuse of it landed him with 8 years’ imprisonment for breaching the Data Protection Act 1998 (the Act). Over 5,000 of those affected brought a claim against Morrisons alleging that Morrisons was vicariously liable for the actions of its employee.

The High Court ruled that Morrisons had no primary liability to the affected employees and that it had discharged all duties it owed to its employees under the Act. However, the Court of Appeal held that Morrisons’ lack of primary liability for the harm caused did not prevent the data subjects from being entitled to pursue a separate vicarious liability claim.

It was held that despite the employee’s acts of data misuse having been carried out in his home, on his personal laptop and for his own criminal motives, the act was sufficiently connected to the field of activities of his employment. Accordingly, all of those affected by his criminal activity could claim for damages against Morrisons.

The effect of the ruling

This ruling may have serious detrimental effects on innocent employers, for whom the need to have relationships of trust with employees is essential. Morrisons have indicated a desire to appeal the decision to the Supreme Court. For now, however, the possibility of substantial claims against employers for the abuse of such trust is unsettling. With the scope of vicarious liability becoming so extensive, businesses ought to remain mindful of the risks of such claims and consider appropriate insurance packages to protect them from becoming the subject of vicarious liability claims.

What’s new

This month we look at the HMRC’s new approach to NMW enforcement after a TUPE transfer, employee monitoring, new ACAS guidance on references, and getting to grips with the menopause in the workplace. Read more

Case law review

A poorly handled ill-health retirement did not amount to disability discrimination

In the recent case of Dunn v Secretary of State for Justice, the Court of Appeal accepted that the claimant’s request for ill health retirement was handled poorly but this did not constitute disability discrimination.  Read more

Constructive dismissal – a cautionary tale

In the case of Brown v Neon Management Services Limited, the High Court looked at the issue of whether not one but two resignations were in fact constructive dismissals. Read more

Employee was an agency worker due to temporary nature of assignment

In the case of Brooknight Guarding Ltd v Matei, the EAT held that an employee on a ‘zero hours’ contract was in fact an agency worker based upon the temporary nature of his assignment. Read more

Victimisation – a change in approach

In the case of Saad v University Hospitals NHS Trust, the EAT has made it clear that the issue of the employee’s honesty is the primary question to be considered when considering whether an allegation of discrimination has been made in ‘bad faith’ for the purposes of a victimisation claim. Read more

Who to contact

Jack Harrington

Head Of Employment

0161 393 9050

jack.harrington@pannonecorporate-com.stackstaging.com

Commercial litigation refers to any form of dispute that is present within a business environment. Whilst people know what business disputes are, and that lawyers can help, many are still unclear on what a commercial litigator actually does and how they can help a company.

Here at Pannone Corporate, we specialise in commercial disputes in relation to contracts, company affairs, real estate, intellectual property, professional negligence, debt recovery and more. The brief points in this blog may help you better understand the services of a commercial litigator.

What to Do Before Beginning Proceedings?

Achieving the best possible outcome for clients is always the key focus for commercial litigators. It is important to properly understand the situation first to help identify the best course of action.

Typically, all parties must outline their claims and responses in pre-action correspondence. It is vital as a claimant that your claim is correctly articulated from the start. A specialist commercial litigator will first investigate the facts with you and analyse the claims that may be available. They may obtain preliminary expert input where the claim requires expert support.  A similar process of investigation will be needed if someone is making a claim against you, before a response to the claim is set out in correspondence.

Alternative Dispute Resolution

Litigation is typically imagined in the court environment. Whilst a court ruling is necessary in some cases, often Alternative Dispute Resolution (ADR) is used prior to the final court hearing.

ADR refers to the various ways in which disputes can be settled out of court. ADR could be conducted by negotiations verbally or through correspondence, informal or “without prejudice” meetings, or by more structured procedures such as mediation or expert determination. A litigation solicitor will be able to advise you on the route which is appropriate for your case and the time at which ADR ought to be used.

What Happens If ADR Does Not Work?

If the solution cannot be found outside of court, commercial litigation solicitors will be able to work with you to complete the steps needed to bring your case to a final hearing in the courts.

Solicitors will usually prepare the statements of case. This will include a claim form and a particulars of claim for a claimant and a defence for a defendant.  In more complex cases, a commercial litigator will typically instruct a specialist barrier in respect of this step. In part, this is because the barrister will argue the case if a trial is reached. After the exchange of statements of case, a commercial litigation solicitor will complete the procedural steps in the litigation, including attending a case management conference (CMC) at the court, the disclosure of relevant documents, inspection of the opponent’s documents, and the preparation of witness statements and expert evidence.

At the CMC the court will likely require the parties to file budgets of their estimated costs. The court will consider those budgets and make orders in order to manage costs.

Before any hearing or trial, your appointed commercial litigator will brief the appointed barrister to argue the case. Your litigator will attend the trial and will support the barrister.

Finally, after the court judgment has been given or the dispute has been settled, your dispute resolution solicitor will assist you if necessary to ensure that the terms of the judgment or settlement are implemented.

Instructing a commercial litigator from the very beginning of a dispute can ensure that you have the best chance to achieve your desired outcome either in or outside of court.

If you would like more information or help with a current business dispute, please get in touch with our commercial litigation solicitors by using our contact form or by calling 0800 131 3355.

Property underpins business. All business needs a space, building or portfolio from which they can operate. Then, of course, there are the businesses where property forms the very core of the undertaking, whether that be buying, selling, investing or developing.

Real estate litigation is not solely about the Court process. At Pannone Corporate we focus not just on litigation, but on looking after your portfolio. The work we do involves managing risk and preventing disputes from escalating in the first place.

Our team is highly experienced in the retail, telecoms and developer sectors and acts for a broad spectrum of clients including landlords, tenants, banks, insolvency practitioners, investors and developers.

We have a wealth of experience in the full range of real estate litigation matters including lease termination and renewal, forfeiture, breach of contract and covenant, debt and insolvency, guarantee claims, dilapidations, consents, residential and commercial possession, professional negligence, compulsory purchase and telecoms, trespassers, protestors and disputed ownership.

We also work with you to “pressure test” your assets and consider where they can work harder and smarter. This, in turn, contributes to the financial stability and profitability of your business. Together we consider whether rates, service charges and rent reviews can command greater savings/rewards and whether your portfolio can be rationalised and excess assets surrendered, terminated or assigned.

Inevitably, litigation does arise. When it does, we work with you, as part of your team to develop a commercial and pragmatic strategy to achieve your goal. We ensure that work is undertaken at the most efficient level and provide transparent, stepped costings so that you can budget for what costs are going to be incurred, and when. We are also adept at employing various methods of Alternative Dispute Resolution, including mediation and arbitration to encourage settlement outside of the Court process. Our job is to manage your dispute and employ the correct range of tactics to bring it to a swift conclusion that you are comfortable with so you can continue to focus on the core of your business.

If you would like to discuss property issues with us, please do not hesitate to contact Gemma Staples on 0800 131 3355 or gemma.staples@pannoneocorporate.com.

Gemma is individually ranked in The Legal 500 and Chambers UK 2018 and described as “technical and very conscientious”. Recent client feedback includes that the team “obtains practical results for clients” and provides  “prompt advice that has seemed thorough and diligent”.

The Independent Press Standards Organisation’s (IPSO’s) compulsory arbitration scheme has now launched, meaning that anyone who has a claim against a participating newspaper can arbitrate their claim at a maximum service fee of £100 (not taking into account any legal fees).

The compulsory scheme extends the voluntary scheme which still remains in place. It means that a potential claimant who would otherwise bring court proceedings in a media law dispute can now require arbitration of their claim and participating newspapers cannot refuse. The type of claims envisaged by the scheme include claims for defamation, malicious falsehood, breach of confidence and misuse of private information, harassment and breach of data protection laws.

The arbitration process means that an expert media law barrister will act as an independent and impartial arbitrator who will review the evidence and make a ruling on the claim.  The new scheme allows an arbitrator to make an award of compensation of up to £60,000, which is an increase on the £50,000 cap for IPSO’s voluntary scheme. The scheme also enables an arbitrator to make a ruling that one party should pay another’s legal costs, capped at £10,000 for represented parties or £1,000 for litigants in person, albeit the arbitrator has discretion to make no order as to costs where that is fair and reasonable.

The objective of the scheme is to enable a quick, cost-effective, fair and impartial procedure for resolving genuine media law disputes. The scheme rules direct the arbitrator to act inquisitorially and with regard to the proactive case management of claims, including by providing a flexible process tailored to each individual claim. The rules also enable an arbitrator to strike out vexatious or frivolous schemes which reflects the court’s approach to establishing that serious harm has occurred in defamation claims following the case of Jameel v Dow Jones 2005 and the introduction of the Defamation Act 2013.

It is anticipated that some claims may be unsuitable for the scheme, for example if they give rise to a novel or complex point of law or it is in the public interest to have a determination by the court. The arbitrator has the discretion to direct such claims be resolved through alternative routes.

The IPSO has appointed an arbitration company to provide the scheme’s services and to monitor and report on its effectiveness. It will be interesting to see the extent to which claimants use the new compulsory scheme and how decisions flowing from the scheme develop and interact with the court’s attitude to media law disputes. For now, it seems that claimants who previously were dissuaded by the costly and time consuming court proceedings may have a more streamlined and cost-effective route to justice against newspapers.

The full list of newspapers covered be the compulsory scheme is: Daily Telegraph, Sunday Telegraph, Weekly Telegraph, Daily Mail, Mail on Sunday, Metro, Times, Sunday Times, The Sun, The Sun on Sunday, Daily Express, Sunday Express, Daily Star, Daily Mirror, Sunday Mirror, and Sunday People.

The Press Association, Conde Nast and a number of magazines such as Vogue, GQ and Tatler remain members of the voluntary scheme.

It is a long-standing and fundamental principle of the law of England and Wales that a testator is free, by making a Will, to leave his or her estate in the hands of whomever they wish. The Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act) provides an exception to this rule and a legal route for those who feel they have not been adequately provided for by a deceased’s Will to make a claim against the estate.

A Will can be challenged on many grounds including lack of valid execution; the testator’s lack of capacity; lack of knowledge and approval; undue influence; and fraud/forgery. Claims under the Inheritance Act are made against otherwise valid Wills and are based on the Will not making adequate provision for certain categories of individuals (referred to below).

Necessary Conditions

The Inheritance Act outlines a number of conditions that need to be met before a claim can be made, in order to satisfy the court that the claim is valid. These include:

• the deceased was living in England or Wales at the time of their death
• the applicant is one of a restricted category of people who can bring these claims, including: spouses (and civil partners), ex-spouses (and ex-civil partners), cohabitees of over two years standing, children (including adult children) of the deceased, persons treated as a child of the family of the deceased by reference to a marriage or civil partnership, and any other persons who was being maintained in full or in part by the deceased at the date of their death; and
• any application must be made within 6 months of a Grant of Probate or Letters of Administration being issued by the Probate Registry.

If these conditions are met, then the court must make a decision regarding whether or not ‘reasonable financial provision’ has already been made for the applicant in the Will.

Factors the court will consider

When deciding whether to make an award, the court must have regard to a range of certain factors. These include, but are not limited to:

• the financial resources and needs of the claimant;
• the size of the estate;
• the financial needs and resources of other beneficiaries; and
• any other matter which the court considers relevant in the circumstances.

Orders of the Court

Following a successful claim under the Inheritance Act, the court can decide upon a number of orders, including:

• periodical payments or a ‘maintenance’ order;
• an order for a lump sum payment;
• sale or transfer of property order;
• an order of redistributing or acquiring property;
• variation of a prenuptial or post-nuptial settlement if the deceased was married.

If a claim is unsuccessful then the estate will be administered in accordance with the Will.

When considering a claim under the Inheritance Act, it is important that you seek the specialist advice of a solicitor and that you do so quickly. This is particularly the case as any claims under the Inheritance Act must be made within six months of a Grant of Probate or Grant of Letters of Administration were issued.

If you are considering making a claim under the Inheritance Act then you need the help of Pannone Corporate. We have an experienced team who act for claimants seeking to bring Inheritance Act claims, executors who face claims and also beneficiaries under Wills who may wish to contest a claim under the Act. For further information, please call our expert team of Will dispute solicitors on 0800 131 3355 or contact them via our online form.

No matter the size of your business, theft in the workplace is an issue that all employers want to avoid. So what do you do if you suspect an employee has stolen from the business? Be it embezzlement, fraud, theft or even intellectual property, most business will have to deal with some form of employee theft at some point.

The most important thing the employer needs to do is ensure that a thorough procedure is followed. This note scratches the surface on what is a complex and sensitive area. The last thing an employer would want to do is wrongly accuse or dismiss someone and this resulting in litigation which is harmful to any business.

Prepare

As with most areas of law, preparation and documentation are key. An employer should ensure they have watertight policies within their employee handbook and that every employee is given a copy of this or access to this at the outset of their employment.

The policy should contain a disciplinary procedure that is clear that theft in the workplace will not be tolerated and could result in a summary dismissal. The policy should state the procedure that will be followed in the event an employee is suspected of theft or any other wrongdoing.

It is also useful these days to have an internet policy which mentions that theft of intellectual property and cybercrime will not be tolerated. Monitoring of employees (eg CCTV, vehicle trackers) is a contentious area and it is advisable you take specific advice about this. Any form of surveillance of employees should be consented to from the outset and the employee should be given specific details as to what you are using this information for and how long it will be stored for.

Investigate

If you suspect an employee has committed theft in the workplace then the first step is to hold an informal ‘fact-finding’ meeting with them. They do not have the right to be accompanied to this meeting.  During this meeting; the employee should be made aware of the allegations against them and given a chance to respond. If you are still not satisfied with their answers then you can proceed to a disciplinary hearing provided you have good grounds to do so.

It is also at that stage that you should start to gather evidence for example statements from other staff that were present at the relevant time or review CCTV footage or till takings etc. It is advisable to have conclusive evidence if you were to ultimately go down the dismissal route as an employer would have to show that they held a reasonable and honest belief that the employee had committed theft.

Disciplinary/Dismissal

The next stage would be to invite the employee to a disciplinary hearing and this would also have to be procedurally correct for example the employee would have the right to be accompanied to this hearing and it is advisable that a different person chairs this hearing than the person who conducted the investigation. Prior to or at the hearing, the employee should be given copies of all the evidence collected for example statements or CCTV footage.

If the policy allows for it then the outcome of the hearing could be a dismissal on the grounds of gross misconduct, however, this will have to be determined on the individual circumstances and factors such as length of service, previous disciplinary records and mitigating factors should be taken in to account. For example, there is a difference between stealing minor office supplies when compared to something much more substantial. If dismissal did end up being the preferred option then any appeals procedure should also be followed in line with the disciplinary procedure and again if possible a different person should chair this hearing to ensure fairness.

Conclusion

It is clear that this area is complex and employers need to get it right to avoid wrongly accusing an employee or leaving themselves at the risk of an employment tribunal claim. Here at Pannone Corporate, our employment team can help guide you through the above issues, be it from reviewing/updating policies or advising on a disciplinary procedure. Call today on (0) 800 131 3355 or use our online form for a confidential discussion regarding your exact circumstances.

The case of Bruzas v Saxton [2018] EWHC 1619 (Fam) raises the question of whether privilege can be asserted in deliberately disclosed material which potentially reveals acts of wrongdoing. In this article we consider the unusual facts of the case and whether it may redefine the boundaries of professional privilege.

What are the practical implications of the case?

One of the most important stages in any litigation will be the disclosure of relevant documents. It allows the parties to assess the merits of a dispute and for the courts to determine its outcome with all cards firmly on the table.

A party is, however, entitled to claim privilege and withhold inspection of relevant documents if those documents are created during the course of seeking legal advice or in contemplation of litigation. Over the years the courts have determined the boundaries in which privilege exists. The authorities give guidance on what should be done about privileged documents which are inadvertently disclosed or those which further a fraudulent or criminal design.

The case of Bruzas v Saxton is, however, unique. It raises the novel question of whether privilege can be asserted in deliberately disclosed privileged material which potentially reveals acts of wrongdoing. The case invites the court to reconsider the parameters for privilege and the circumstances in which this fundamental right may be lost.

What was the background to the proceedings?

The parties to the proceedings were formerly married but divorced in 2013. In March 2014, the husband and wife agreed terms for a consent order which included financial remedies such as provision for certain capital redistribution and payments from the husband to the wife. The wife subsequently became dissatisfied with the terms of the consent order and applied to set it aside. Parker J dismissed that application at a hearing in December 2017.

Following the wife’s unsuccessful application, sometime in January 2018 Parker J received through the post documents which contained an account of alleged communications between the husband (as client) and his solicitor and counsel during 2017. The material was delivered to Parker J by a paralegal employed by the firm of solicitors who had represented the husband.

Following deliberation of the documents, Parker J then supplied copies to the parties and a hearing was listed on 28 February 2018 to consider what should happen to the documents.

Prior to this hearing, the wife filed and served an unissued application notice to dismiss the December 2017 order by which her application to set aside the consent order was dismissed. The wife’s application relied on alleged acts of perjury committed by the husband and his legal team, it being understood that this application was triggered by the documents she had received from the court.

Parker J subsequently recused herself from further involvement in the case on the grounds that she had seen the documents which, by submission of the husband, were protected by legal professional privilege. Parker J made an order for the allocation of a further hearing to another judge to determine the future conduct of the matter. This was to include determination as to the admissibility of the documents delivered by the paralegal.

What issues were considered by the court and what did it decide?

In judgment handed down on 21 June 2018, Mr Justice Holman recognised that this case gave rise to a novel set of circumstances. The judge felt unable to substantively resolve the issues of admissibility at this hearing for a number of reasons including that he did not have the official transcripts from the earlier hearings; the documents in question were likely to require review in order to determine admissibility; and that the wife had not formally issued her application such that there was no live application before him.

The judge accordingly limited himself to giving directions as to the future conduct of the matter and made a rare direction for the matter to be listed before the President of the Family Division. The judge considered that the facts and circumstances of the case required consideration at that high level.

In his judgment, the judge makes a number of interesting observations regarding the case and the matters which will require determination by the President in due course. The judge observed that the facts of this case give rise to a novel and very serious point on what he described as ‘one of the most cardinal areas of our law’, namely legal professional privilege.

The judge recognised that the law surrounding legal professional privilege was of a complex and ever evolving nature and that the case would require an intense consideration of the relevant authorities.

The current legal position is fairly established in circumstances where there has been an inadvertent or accidental supply to another party of privileged documents. However, this case raises the unique question as to admissibility in circumstances where there has not been a mistaken disclosure but a deliberate and considered disclosure by a member of one party’s legal team to the court, and then subsequently by the court to the opposing side.

What is the general approach to professional privilege where privileged documents are disclosed, accidentally or otherwise, to a judge?

Legal professional privilege subsists in communications between a lawyer and a client which come into existence in the course of giving or receiving legal advice.

Privilege entitles a party to withhold evidence from a third party or to the court. Once privilege is established, then a fundamental and absolute right to withhold the evidence arises. The rule is of central importance to the operation of our legal system. The right to assert legal professional privilege is generally regarded as a fundamental human right which allows clients to communicate openly and freely with their legal advisers.

It is, however, generally accepted that privilege cannot be claimed unless the evidence in question is confidential. Where there has been disclosure of privileged documents to an opponent, the starting point is that those documents are no longer confidential between them and privilege cannot be claimed.  This is subject to CPR 31.20 which provides that where a party inadvertently allows a privileged document to be inspected, the party who has inspected it may use it only with the permission of the court. The court has the jurisdiction to grant injunctive relief to prevent use of privileged material which has been disclosed as a result of an obvious mistake.

In the case of Dupont Nutrition Biosciences ApS v Novozymes A/S [2013] EWHC 155 the court held that privilege had been waived in a memorandum which had been disclosed to the opponent to the litigation. This was notwithstanding the disclaimer that the relevant employee was on holiday and therefore mistakes may have happened during the assessment of privilege. The court did not consider this to be an obvious mistake which justified reinstating privilege.

In the present case, it cannot be said that there is any obvious mistake. To the contrary, there has apparently been a deliberate and considered disclosure of privileged material firstly by the paralegal to the court and secondly by the court to the wife. Furthermore, as in the Dupont case, the wife relied upon and used the documents in question such that it may be difficult to now reinstate privilege. Arguably, the privilege in those documents has been waived and confidence in them lost by virtue of these disclosures.

One further consideration for the President will be the apparent allegation that the disclosed documents reveal acts of wrongdoing. The law recognises an exception to the protection afforded for privileged documents known as ‘the fraud exception’. This rule establishes that communications between a lawyer and a client will not attract privilege if the purpose of the client in seeking advice is to facilitate crime or fraud.

As recognised by the judge in this case, any determination on the admissibility of the documents will require their review. If those documents do reveal a prima facie case of fraud, it is likely that the husband will not be able to assert privilege in respect of them.

What is your view on the assertion that the case involved a ‘whistle blower’? What are the potential implications of that?

Holman J recognised that on the one hand, if an employee of a firm of solicitors is able to disclose privileged information this could potentially undermine the fundamental doctrine of legal professional privilege. On the other hand, ‘fraud is fraud, and my current understanding is that legal professional privilege cannot, in the end, withstand the unravelling of fraud or similar malpractices if (I stress if) they have taken place’.

The facts of this case are unusual. If it is determined that privilege in the documents has been waived because of their deliberate disclosure and/or because the documents reveal fraudulent acts, this does further define the boundaries for privilege but arguably does not threaten the fundamental right of privilege more generally.

This article was originally published on LexisPSL (www.lexisnexis.com/uk/lexispsl – subscription required).