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Factors for considering litigation ?

Below is a useful list of factors to consider when balancing the decision of whether litigation should be pursued. It is all too easy and understandable when owed money to let emotions rule your head, so a hardnosed, objective approach is really important :-

1. Are the potential legal costs of taking action proportionate to the amount in dispute ?

2. Are the prospect of success greater than around 60-65% ?

3. Crucially, do the defendants have sufficient assets to potentially pay  both the sum being pursued together with legal costs and what do they have to lose by losing ?

4. Are there any tactical considerations such as use of a statutory demand, an injunction, an application for summary judgment or any non-legal tactics which ought to be considered ? If so, what are the risks/rewards ?

Can children own legal assets ?

Children are able to hold assets in certain circumstances.

Ownership of land

In property law, a minor may not acquire or hold any legal estate in land (section 1(6), Law of Property Act 1925 (LPA 1925)). minor can, however, hold an equitable interest in land and can succeed to secured or statutory tenancies.

Ownership of intellectual property

In intellectual property law, rights in patents are personal property rights (section 30(1), Patents Act 1977). A minor may own and/or settle a legal or equitable interest in personal property.

The Copyright, Designs and Patents Act 1988 (CDPA) does not specifically deal with minors or a minimum age for copyright ownership. Consequently, it appears that a minor can own a copyright work if they can satisfy the requirements of ownership in section 154 of the CDPA.

Ownership of shares

Company law provides that adults can hold shares on a child’s behalf. An effective way to hold shares for minors is to register the shareholding in the adult’s name using the child’s initial as a designation.

Restrictive Covenants in Employment law – By Ben Jones, Solicitor at Darlingtons Solicitors

Darlingtons Solicitors advise on a variety of issues in relation to Restrictive Covenants from both employer and employee perspectives, including limited companies, listed companies, senior executives and junior employees.

It is important that all parties take into account the current law on Restrictive Covenants before entering into contractual relationships, failure to do so could render any Restrictive Covenants clauses unenforceable and will ultimately damage an employers business. Employers and employees alike must have a clear understanding as to when Restrictive Covenants are enforceable and how they apply post termination.

Generally speaking there are four common potential clauses for employment law Restrictive Covenants:

1.         Non Solicitation – to prevent the employee actively soliciting or endeavouring to entice away customers of the employer for a set period;

2.         Non Compete – to prevent the employee from working for a competitor usually clearly defined and within a geographical area for a set period post-termination.

3.         Non recruit- to prevent an employee from recruiting other employees for a set period.

4.         Restrictions on the use of confidential information to prevent the use of information acquired by an employee during employment. Although there are normally general obligations on an employee in relation to confidential information, both implied and those which are included in his/her employment contract, it is often the case that a Restrictive Covenant will seek to expand upon this and provide further obligations to protect the employers business.

For example, in the absence of specific provisions an employee will only be obliged to keep confidential “trade secrets”. It is likely that client/customer lists will be free for them to use.

It is also possible to draft a Restrictive Covenant which will apply whilst the employment relationship continues. The parties should bear in mind that in any event implied duties apply to the employment relationship, which include the following:

• Fidelity;
• Duties of obeying law for reasonable orders;
• Duty to exercise reasonable skill and care;
• Professional obligations;
• Obligations to pay wages;
• Duty to indemnify;
• Duty to provide work;
• Duty to give reasonable notice;
• Health and Safety duties;
• Duty to provide a suitable working environment;
• Address all grievances;
• Duty not to act unreasonably in relation to pay;
• Duty to advise employees of rights and benefits, giving references, long term sickness and permanent health insurance schemes.

There is also an implied duty of mutual trust and confidence which applies to both parties. Continue reading →

Freedom of Information requests – Information Commissioner to get tough

Like many aspects of the regulatory powers of the Information Commissioners Office, it is taking some time for any real enforcement to bite, partly perhaps because enforcement is so difficult and the rules apply to such a huge number of bodies and businesses. Not surprisingly, in an atmosphere where regulators and Governments want to be seen to be implementing rules they have instigated, enforcement is starting and generally against targets who can pay the fines ! What is interesting is that enforcement of the freedom of information rules has been threatened against the Government. Undertakings for faster compliance have apparently been demanded from :-

• Cabinet Office
• Ministry of Defence
• Birmingham City Council
• London Borough of Hammersmith and Fulham
• London Borough of Islington
• Wolverhampton City Council
• Westminster City Council.

In terms of the Government, it appears from data that central government, despite receiving 8% more FOI requests in 2010 than in the previous year before, actually answered 86% within the necessary timeframe of  20 working days, with the Health Department posting an impressive 99%  compliance, followed closely behind by the Treasury at 95%. The Ministry of Justice received the most requests.

The 2010 statistics are at http://www.justice.gov.uk/downloads/publications/statistics-and-data/mojstats/2010%20Annual%20and%20Q4%20FOI%20bulletin%20vfinal.pdf

what do you think about IP rights and data protection ? Let us know !

Delay in implementation of Digital Economy Act provisions

It appears the implementation of law to deal with illegal file sharing will be delayed for perhaps another 6 months due to pending High Court litigation, in terms of an application for judicial review by 2 major UK internet service providers who consider the legislation impossible to implement.

In the meantime, the Government will apparently continue with it’s plans to send a large number of warning letters to alleged copyright infringers. If and when the legislation is fully activated it will place a heavy burden on Internet Service providers who will need to send notification letters to any customers accused of illegal downloading. If the alleged infringement is not remedied, the ISP will need to take practical action involving potentially slowing down the infringers internet access or blocking it.

Implied terms in a contract

When a person enters into a contract, it is not unusual to assume that the terms are usually set out in black and white, but this is not necessarily the case. Sometimes contract law intervenes and the parties have to take into account of other matters or terms. One of the reasons that a court might imply new terms into the contract is that the law is trying to make things fair, or make sense of the contract. For example sometimes the parties do not specify in detail all the provisions of the deal but the contract doesn’t make commercial sense unless additional terms are implied.

With the idea of buying merchandise from a seller (a contract can be oral or in writing), there are certain terms that the law automatically implies into the transaction even if the parties do not express it at the time. The Sale of Goods Act 1979 provides that the seller has the right to sell the goods, that if the goods are sold by reference to a description then the goods must comply with that description and also consumer law implies that the goods must be of ‘satisfactory quality’. As such, if a buyer tells the seller that he is buying something for a specific use, then the law states that the goods should be fit for that purpose. Similarly, if goods are sold by sample, the large order must correspond to the quality of the sample product.

Similarly, English law will imply terms when a service is supplied under a contract in the course of a business, for example it is implied that a supplier of services will exercise reasonable care and skill and within a reasonable time. As such, a buyer is protected from a charlatan seller who wants to wriggle out of providing a reasonable service.

Sometimes, these implied terms become more specific. In an employment contract, the law can imply additional terms including the employer’s obligation to provide a safe and healthy workplace or the employee’s obligation to be honest. The extent of these terms depends on the facts of each case, so if employer and employee have always behaved in a certain way, then the custom and practice may affect the terms the law implies into the contract. Alternatively, the law may become involved to impose the legal right to the national minimum wage.

Terms can be incorporated because the courts conclude that this is what would have been obvious to both parties when they negotiated the contract as a matter of fact. In other cases, the courts will impose the law to incorporate terms that ought to apply, such as a landlord’s obligation to keep communal areas in a state of reasonable repair. There are also situations that arise when things are assumed as a matter of custom in certain circumstance. A popular example here would be the idea of a ‘baker’s dozen’ which means thirteen, rather than an ordinary ‘dozen’ which is twelve. Where items are sold as a baker’s dozen, then that can be assumed to have been intended to be a term in the contract in the absence of evidence to the contrary.

There are other, more hidden and obscure occasions when a law implies terms. For example, when dealing with the sale of property, the Law of Property (Miscellaneous Provisions) Act 1989 can incorporate certain terms into contracts for the sale of land, or in other circumstances the law implies certain terms to protect consumers. In other cases, the courts would infer the application of certain common law principles into a contract.

It is for this reason that it is helpful to look for some legal advice when worried about the content (or lack of content) in an agreement that has entered into. Similarly, if someone is intending to document a transaction, it may be useful for a lawyer to look at the drafting of the document to make sure that it does all the things one would expect (and if additional implied terms need to be taken into consideration). Obviously, one of the main aims in a contract is for each party to understand what it expected of them so that disputes and misunderstandings do not arise and if something goes wrong, then it is clear what the obligations on each party are so that matters can be resolved. Implied terms are introduced as a matter of equity and should not looked upon as an aid to good business law practice.

It’s pretty safe to say that lawyers all over the world get a pretty bad rap. Lawyers are people doing a job, just like everyone else. In the UK, many solicitors earn less than train drivers and few jobs are more stressful. Again, in the UK, the charges of property lawyers for conveyancing have not changed in general terms for over 20 years and many personal injury claims are dealt with on a  no win no fee  basis, with some lawyers even offering cashback to the injured client !

The World Legal Forum was set up to ensure the effectiveness of the role of international law by making sure public-private institutions interact, ensure debates between the stakeholders and solicitors, and the creation of new instruments and legal services.

The World Legal Forum put together its first public conference in December 2007. It’s title was ‘Effective International Dispute Settlement for Public and Private Actors’, and it brought together business organisations, academics and policy makers to facilitate interesting discussion on intellectual characteristics of the topics being discussed.

In December 2008 the World Legal Forum put together a seminar called ‘Public and Private Actors in International Lawmaking, new perspectives for international supervision, regulation and dispute resolution’. The keynote address was by Professor Francis Fukuyama on the effectiveness of legal regulation and codes of conduct initiated by private actors and the legitimacy of public international law.

In 2009 the World Legal Forum organised its annual conference on ‘Private International Regualation and Public Supervision’.

The interaction and cooperation between public and private individuals and organisation is a vital step in our world order which changes all the time. International law is now therefore even more important to us. Through the use of expert level discussions, the World Legal Forum aims to generate future initiatives within the international legal community of the Hague.