By having a better environment, the Government aims to encourage the industry to flourish in the UK rather than go elsewhere. The UK life sciences industry is growing faster than the general economy and provides high-skilled jobs. Not only is it good for people’s health, it is good for the UK economy.

The Government’s strategy includes providing funds for innovating biotech and medtech SMEs. Its policy includes the following:

• Providing £180m to a new Biomedical Catalyst Fund to support early-stage research, administered by the Medical Research Council and Technology Strategy Board, to nurture innovative technologies from the academic or commercial sector.
• Giving £130m for the Medical Research Council to support research and development in stratified medicine – specifically, collaborations between academia, clinicians and the industry to develop targeted treatments.
• Introducing a new Seed Enterprise Investment Scheme this year, where people will be able to benefit from 50% income tax relief on investing in early-stage companies.
• Establishing a new Cell Therapy Technology Innovation Centre in London and a new technical hub for bioinformatics in Cambridge.
• Enshrining a new legal duty to promote innovation within the new Clinical Commissioning Groups.
• Subject to a consultation taking place this year, easing a path for bringing breakthrough therapies to market through a new Early Access Scheme.

Paul Gershlick, Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “It is exciting that the Government is taking a fresh look at not just improving the healthcare at the point of delivery, but also preserving the UK’s rich heritage as being a centre for excellence in innovation. In the face of the patent cliff globally affecting big pharma, it is positive to see the UK seeking to take advantage of the unique qualities in building new innovation opportunities within a well-established industry that has excellent skills, and bringing the NHS closer together with industry.”

The ASA noted in its ruling that TripAdvisor did not verify reviews placed on the website, so the claim that the reviews were from “genuine travellers” could not be made as TripAdvisor could not prove who had placed the reviews. The ASA ruled that the claims breached the CAP Code and should not be repeated.

The CAP Code is the code of practice that seeks to ensure that adverts are not misleading. Although the CAP Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space.

Although the CAP Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space. CAP intends to consult interested parties and publish the results of its consultation in December 2012.

Richard O’Dwyer closed the website in 2010 after he was visited by the police and US officials. However, US authorities alleged that the website contributed towards “criminal activity” in the US despite O’Dwyer never having been to the US, and despite the fact that no action is being taken against him in the UK. They also claimed that the website generated $230,000 in advertising revenue before it was shut down. O’Dwyer should be extradited to face charges of “authorising copyright infringement” as providing the links to the pirated content is a serious offence in the US and would justify extradition under the UK-US extradition agreement.

O’Dywer’s lawyers had argued that the website was merely a search engine for content, and that he should only face charges in the UK. He could face up to ten years in a US jail if found guilty of copyright infringement.

Correct. It was HMRC’s Chris Martin (who was propelled into the spotlight when Harry Redknapp and Milan Mandaric were found not guilty of tax evasion) putting a good spin on a rather embarrasing defeat.

It would be rather pointless to recap the events of this rather well publicised trial.  But what might be more interesting is to think about what this means to other tax payers.

First if you are a sportsperson then it’s probably good news.  My understanding of the oft mentioned £8m campaign was that it related to the whole operating to look into fraud in sport (not just Redknapp’s trial).  I also understand that it has led precisely nowhere.  If anyone from the Met is reading this, feel free to set me straight.  So politically, and economically, it seems that this campaign might be over faster than you can say “transfer fee”.

If you are a tax evader, it probably makes no difference.  I’ve not yet read the full case report but if HMRC can’t prove tax evasion then they won’t get very far.  I don’t want to do their work for them, but HMRC’s powers to get information from offshore tax havens is always increasing and the UK has entered into a number of Tax Information Exchange agreements that greatly assist in tracking down fraudsters.  If you are one of those, then Chris Martin (not that Chris Martin – the one at the start of the blog), is probably right.  There are a number of disclosure facilities which may result in a reduction in any penalties and it is worth speaking to an expert before turning yourself in!

There is nothing wrong per se in having bank accounts in tax havens, provided that you make sure that any tax planning is done properly.

If you are expecting a bonus, I also wouldn’t take this as carte blanche to become friends with your boss and ask for some seed money for your investments.  The law hasn’t been changed by this judgement – a bonus is still taxable, and it will be a question of fact as to whether or not a payment is a bonus.  The assumption should generally be that it is taxable, and any derogation from this would require professional advice.

There are also a lot of rather more “vanilla” and rather more tax efficient ways of motivating employees such as share options, which should be considered before paying sums into bank accounts in Monaco in the name of your dog!

If you would like to discuss any of these points, please contact our wealth management or employment teams.

The solicitors admitted negligence, but the question the court had to consider was how much could AIB recover.  When the property was sold following a possession order, £300,000 was paid to Barclays in respect of the amount outstanding to them and the balance of £867,700 approximately was paid to AIB.  However, the advance had been for £3.3 million and so AIB faced a significant loss.  Was AIB’s claim limited to £300,000 (the amount paid to Barclays) or were the solicitors liable for all of AIB’s loss?

As the court noted the common sense view was that the loss AIB claimed was the result of the fact that either the property was never worth the amount it lent against or because of the fall in the market. AIB’s counsel considered, however, that because of the application of equitable principles, the bank would be able to recover all of its loss.

The court analysed the relationship between the solicitor and the bank in relation to the remortgage. The terms on which a solicitor is authorised to pay out monies held in his client account are to be determined by construction of his contract of retainer.  However, equally a payment out of monies in breach of those terms of the retainer that govern the authority to pay would amount to a breach of trust.  The court’s task, therefore, was to construe the terms of the retainer in order to ascertain what authority they confer on a solicitor to pay out of money that he holds on trust for his client.

In this case the written terms of the retainer did not deal explicitly with the precise circumstances in which the solicitor could pay out the money, so that it was necessary to fill in any gaps arising on the ordinary basis of construction.  Analysing the transaction, the Judge considered that the solicitors’ instructions authorised them to pay to Barclays sufficient sums to procure a release of its charge and to pay the balance to the borrower or to their order.  Had they complied with the instructions they would have paid £1.5 million to Barclays and £1.8 million to the borrower.  In the event they paid £1.2 m to Barclays and £2.1 million to the borrowers.  In so doing they committed a breach of trust, but it did not follow that the whole of the payment was made in breach of trust.  The extent of the breach was the amount they should have retained and not the whole payment.

As a result the bank was entitled to reconstitution of the trust fund by repayment of the amount wrongly paid away.  In addition, the bank was entitled to equitable compensation for the additional amounts accruing due to Barclays which had increased the amount secured in priority to the AIB’S interest, but it was ordered to give credit for the amounts paid by the borrowers to the Barclays account since these had had the effect of reducing the loss caused by the defendant’s breach of trust.

This case confirms that where there has been a breach of trust a claimant will only be entitled to claim for the amount relating to the extent of that breach rather than the whole of its loss.

AIB Group (UK) Plc v Mark Redler & Co (a firm) [2012] EWHC 35 (Ch)

When Mr Patel complained to Unite about the postings, Unite took the forum offline and released a statement that the allegations against Mr Patel were unfounded; but Unite failed to respond to Mr Patel’s request for the identification of those responsible.

The BASSA website was subject to terms of use, which warned users that their personal data might be disclosed subject to data protection and privacy law.

Mr Patel successfully applied to the High Court for a “Norwich Pharmacal” order, which required Unite to provide the identities, addresses and Internet Protocol addresses of the users responsible. Instead, Unite maintained that the information requested had in fact been deleted. Mr Patel and his solicitors pushed Unite to make further efforts to recover the information, without success. Mr Patel therefore sought a further Norwich Pharmacal order for an independent expert to be given access to Unite’s database on the grounds that the continued failure to provide the information must be, at best, as a result of incompetence or technical ignorance. Unite objected to a further order on data protection grounds.

The High Court ruled that Unite had not provided sufficient evidence that it had carried out the reasonable search required by the first Norwich Pharmacal order, and Unite had not shown that it had actually followed up the information provided by Mr Patel in order to carry out that search. The High Court noted that the additional order that Mr Patel was asking for was intrusive, but that it was proportionate and necessary to give the order so that Unite would comply with Mr Patel’s information request. The High Court considered the fact that the website terms of use warned users that Unite might disclose a user’s identity, subject to data protection and privacy law, and that, without the order, those responsible would not be identified. Whilst the order was given by the High Court, it was strictly limited to an expert appointed jointly by both parties and only to the disclosure of the information which would identify those responsible, or which explained why identification was not possible.

In 2011, Samsung pursued injunctions against competitors in the manufacture of mobile devices for infringement of its patents. This was despite Samsung having given a commitment to the European Telecommunications Standards Institute (ETSI) in 1998 to license standard essential patents relating to European mobile telephone standards to its competitors on fair, reasonable and non-discriminatory terms.  According to the EC, Samsung’s pursuit of an injunction may be an abuse of its dominant market position under Article 102 of the Treaty on the Functioning of the European Union. European standards are agreed specifications imposed by the EC in order to ensure interoperability of products, and standard patents should be licensed on fair, reasonable and non-discriminatory terms.

The EC has said that Samsung was obliged to license the use of 3G mobile and wireless technology patents to its competitors on fair, reasonable and non-discriminatory terms but that, in trying to enforce its rights over those patents against its competitors in court, it may have breached those obligations.

The Red Tape Challenge is a website-based project aimed at identifying – and scrapping – unnecessary regulations. Over the past few months, the Government has been asking interested parties to submit a response on the website, suggesting which regulations across various sectors should be scrapped, merged with other regulations, simplified, or improved. The focus is now on company law regulations. Further details on the Red Tape Challenge are here.

The Department for Business, Innovation and Skills (BIS) has invited comments on how it might reduce the administrative burden placed on UK businesses, whilst continuing to provide adequate protection for creditors, customers and suppliers. It highlights approximately 120 pieces of company legislation for review, under four headings: The Workings of Companies and Partnerships; Accounts and Returns; Business Names; and Disclosing Information about your Business. Comments can be made here.

BIS has also published a Discussion Paper, Providing a flexible framework which allows companies to compete and grow, which seeks views on how the company law framework can be improved in all areas. The Discussion Paper poses a number of questions in relation to the possible improvement in the following further areas of company law. These include:

1. Company names. BIS asks for views on whether the law on company names causes problems and delay;

2. Company filings. BIS asks whether it would be beneficial to be able to file an annual return and accounts together and how the system should change to best accommodate that;

3. Rights to inspect company registers. BIS asks for suggestions to improve, in practice, how registers may be inspected;

4. Penalties and enforcement. BIS asks whether the existing UK system of setting of fines and penalties is the most appropriate method for achieving compliance with the law; and

5. Employee share schemes. BIS asks whether existing company law as regards the design and operation of company share ownership schemes requires amendment or simplification.

The Red Tape Challenge is focusing on company law until 16 February 2012, but comments on UK regulation can be made after this date (although it is not clear to what extent the Government will take account of comments it receives after 16 February.) The Discussion Paper does not specify a date by which the Government must receive responses to the specific questions posed.

As Paul Gershlick, head of the Pharmaceuticals and Life Sciences Sector at Matthew Arnold & Baldwin LLP, told Intellectual Property Magazine (here –  http://www.ipworld.com/ipwo/doc/view.htm?id=279786&searchCode=H): ”

“The AstraZeneca job cuts are a huge blow for R&D in the UK’s skilled pharmaceutical industry, but not surprising given the challenges that the industry is facing.  It is not just the current large-scale ending of blockbuster patents without adequate replacement new drugs to fill the revenue gap.  There are many other factors at play which are changing the industry’s landscape. 

“There are opportunities, though.  It is to be hoped that the UK’s unique trading, geographic, skills and NHS advantages in an increasingly globalised world will help to secure those opportunities.  A recent Government initiative to make good use of anonymised NHS data should therefore be welcomed.  In AstraZeneca’s case, it is good to see their recent announcement of creating partnership-type initiatives with other businesses, universities, governments and charities.”

Matthew Arnold & Baldwin LLP’s Pharmaceutical and Life Sciences Sector Group has been at the forefront of debate about the patent cliff and the other effects that are shaping the future of the pharma industry, having recently hosted a talk with the Watford Chamber of Commerce to 100 guests. At the talk, Professor Brian D Smith spoke about “The Future of Pharma” based on the book he recently wrote with the same name.  It follows three years of extensive interviews with leading industry players, and a deep analysis of the history and trends in the industry, outside social and technological influences, economics, management science and evolution theory.

Paul says: “The patent cliff is the hot topic.  But the picture also needs to bear in mind: (a) price erosion even for products IN patent as governments seek better value; (b) increased costs of bringing drugs to market; (c) a lack of real advance in “new” drugs; (d) a more risk averse market; (e) a more demanding and sceptical end consumer; (f) a less uniform customer market; (g) drugs being more specialised rather than blockbusters; (h) the impact of rapidly changing technology; (i) the pressure of falling share prices on R&D pots; (j) the impact of the “shift to the east” on established companies and markets. 

“Times are changing in the pharma industry and businesses need to adapt to survive.  AstraZeneca’s job cuts are just the latest evidence of that.”

In a reminder of the dangers of an aggressive marketing campaigns aimed at the trade marks of competitors, the Court of Appeal has allowed part of Specsavers’ appeal against the High Court ruling. The Court of Appeal has ruled that:

-          Asda’s cross-appeal over the use of the strapline “be a real spec saver at Asda” should be rejected because it took unfair advantage (under Article 9(1)(c) of the Community Trade Marks Regulation) without due cause of the distinctive character and use of Specsavers’ registered Community Trade Marks (CTMs).

-          Specsavers’ appeal that the strapline “spec saving at Asda” infringed its CTM should be upheld, also on the basis that it took unfair advantage under Article 9(1)(c).

-          Specsavers’ appeal under Article 9(1)(b) that the straplines and bespectacled logo used by Asda infringed its word and logo marks should be dismissed. For the appeal under Article 9(1)(b) to have succeeded, Specsavers would have had to show that the average consumer would have been likely to have been confused. Here, the overall marks gave a different impression to the average consumer. There was a difference between what the judge described as “living dangerously” and one who intended to confuse customers. This was more of a case here of unfairly taking advantage of the reputation of the brand owner’s mark (for which Specsavers succeeded under Article 9(1)(c)) rather than customers being confused.

-          A further query about a wordless logo mark should be referred to the European Court of Justice for clarification.

This ruling should come as a relief to brand-owners, who argued that the High Court interpreted the definition of “unfair advantage” too restrictively in delivering its initial ruling. The ruling of the Court of Appeal emphasised the importance of the market position held by Specsavers due to its brand and the fact that Asda had intended to target that market position in its advertising campaign. A winning result for the brand, although not everything is seen totally clearly yet until we get the ruling back from the European Court of Justice.

In this blog, I cited the case of Gulf International Bank BSC v Ekttitab Holding Company KSCC and another [2010] EWHC B30 (Comm.) where the court considered an application to set aside a judgment entered in default on the basis of breaches of court rules by the Claimant.

In Gulf International, the court held that a default judgment can and will be set aside against a Defendant where it is found that a Claimant has not complied with CPR6.17  (ie. to provide a certificate of service within 21 days of service of the Particulars of Claim) and also CPR7.8(1) (ie.  to provide a Defendant with a Response Pack – it is the Response Pack which highlights the procedural steps which must be taken to prevent judgment being obtained in default).

 The Rules to set aside or vary a default judgment

 CPR3.10 gives the Court a general power to remedy matters where there has been an error of procedure.

CPR13.3 sets out the rules where a court may set aside or vary judgment entered under CPR12.

Although this power is discretionary and will be exercised by the court where the defendant has a real prospect of successfully defending the claim or where there is some other good reason why the judgment should be set aside or varied so that the defendant is allowed to defend the claim (CPR 13.3), the court will always consider whether the person seeking to set aside the judgment made an application to do so promptly (CPR13.3(2)).

 Update

It is CPR13.3 which has been considered more closely in the recent case of Henriksen v Pires [2011] EWCA Civ 1720  where the Court of Appeal has held that where a Defendant has failed promptly to apply to court in order to set aide a judgment entered in default, in accordance with CPR13.3(2), this outweighs any potential procedural technical defect that the Claimant has demonstrated in failing to file a certificate of service (Form N215) and/or a Response Pack.  

In Henriksen v Pires, the Defendant’s application to set aside judgment was made more than 8 months after judgment had been entered.   The wording of CPR13.3(2) is very specific and states that the a person requiring a judgment to be set aside should make their application promptly.  The case of Mullock v Price  EWCA Civ 1222 considers in detail the meaning of  “promptly”.

Henriksen v Pires demonstrates to a Defendant just how important it is to make a prompt application to the court to set aside judgment.  Even where a Claimant has not followed the technical rules strictly in relation to filing a certificate of service and/or issuing a Defendant with a Response Pack, Henriksen shows that the Court is willing to forgive a Claimant such indiscretion when faced with a Defendant who has caused unnecessary delay in bringing their application to set aside judgment.

The FSA states in the guidance that it is concerned at the number of unfair clauses it comes across in consumer contracts, such as rights to unilaterally alter or terminate a contract, rights to transfer obligations under a contract and contractual terms that are not in plain English. Whilst the FSA’s guidance is intended only for firms regulated by the FSA, it is a useful reminder to everyone involved in commerce as to what unfair terms are and how businesses can avoid imposing an unfair term on a consumer. The FSA can take action against businesses registered with it for unfair contractual terms, for example by obtaining a court injunction to prevent an unfair term being used any further by the business. The Office of Fair Trading (OFT) can also take action in the wider market place against offending practices.

The FSA sets out that, if a business can specify a valid reason within the contract itself as to why terms might be unilaterally altered, the right to unilaterally alter the contract is less likely to be considered unfair. A right of alteration is unlikely to be valid if it is, for example, in the business’s absolute discretion or to cover “unexpected” costs. In addition, stating that the contract can be altered “for any valid reason” will not be enough. If a business does alter a term that has a significant impact on the consumer’s obligations under a contract, such as varying charges payable by the consumer, the consumer should be informed of the change as soon as possible and given the chance to terminate the contract with immediate effect, without charge or other “practical” barriers put in place by the business to prevent the contract coming to an end.

Similarly, in relation to the transfer of obligations to third parties, the business should make sure that the guarantees provided to the consumer by the third party are the same as or better than those offered by the business itself – they key is stability and certainty for the consumer. The guidance states that consumers should be adequately informed of any transfer in good time for the consumer to fully understand the impact on the contractual relationship.

Simon Weinberg, a solicitor in the Commercial/IP/IT team at Matthew Arnold & Baldwin and assistant editor of Upload-Commercial/IP/IT, commented, “This guidance, whilst useful, does not necessarily tell us anything new. It is an important reminder for businesses of the requirement to have contractual terms that do not unfairly prejudice the consumer. It is not just the risk of an injunction to prevent the future use of those terms that should be taken into consideration – in addition, businesses should remember the bad press that can come with an injunction and the knock-on effect on consumer goodwill to an offending business. At a time when margins are tight and goodwill is essential to survival in the marketplace, getting contractual terms in order is an easy way to avoid the risk of an FSA or an OFT investigation, and all the reputation damage that can come with it.”

In PGF II SA v OMFS Company and another [2012] EWHC 83 (TCC)  the TCC ordered that both parties should bear their own costs after the date on which the relevant period for acceptance of a Part 36 offer expired and therefore departing from the usual order under CPR36.10(where an offeree is liable to pay the offerer’s costs for the period from the date of expiry of the relevant period to the date of acceptance).

The decision in PGF II SA v OMFS Company and another [2012] EWHC 83 (TCC) shows that there are still very few occasions where the court will hold that a party’s decision to refuse to enter into mediation or some other form of alternative dispute resolution is considered reasonable.

The General Rule and Halsey

The general rule on costs is that the unsuccessful party will be ordered to pay the costs of the successful party but the court has a wide discretion on the issue of costs and will have regard to all the circumstances surrounding a case (CPR44.3) including the conduct of the parties.  Much emphasis is also placed on the efforts made by all parties to a dispute, before or during the proceedings to try and resolve the dispute (CPR44.5(3)(a)(ii)).  

The leading case on whether a mediation should be followed is Halsey v Milton Keynes General NHS Trust [2004] and which provides a useful checklist of when a party is justified in refusing mediation; for example, when the nature of the dispute is not suitable for ADR; whether the cost of ADR is disproportionate to the case; the damaging effect of delay caused by a stay for ADR, especially where a trial date is imminent; whether ADR has a reasonable prospect of success.

Post Halsey

The case of Rolf v De Guerin [2011] EWCA Civ 78 demonstrated that the Court of Appeal can and will exercise its discretion and make no order as to costs when a party unreasonably refuses to participate in settlement negotiations or some other form of ADR.  In Rolf v De GuerinLord Justice Rix spoke of the “sad case about lost opportunities for mediation”  and said that where negotiation and/or mediation would have had a reasonable prospect of success and where a party spurned offers made by the other party to enter into settlement negotiations or mediation, such behaviour is considered  unreasonable and ought to bear materially on the outcome of the court’s discretion in deciding cost. 

A further Hong Kong reported case, Ansar Mohammad v Global Legend Transportation Limited has also shown how refusal to mediate will usually amount to unreasonable behaviour and lead to the refusing party being deprived of much if not entirely all of its costs.

The most recent decision taken in PGF II SA v OMFS Company and another [2012] EWHC 83 (TCC)  shows all parties to litigation that where one party fails to accept another party’s offer to mediate, and where the court generally believes that such a mediation would have had a reasonable prospect of success, such conduct by an obdurate party must be taken into account by the court when it comes to exercise its discretion in relation to costs.    Further, the case also shows that any arguments about why a party refuses to mediate are difficult to sustain unless they are put forward at the relevant time. Any costs sanctions will be imposed from the time a party refuses to mediate, not from when a proposed mediation may have taken place.

The Court of Appeal has rejected an appeal against the decision of the High Court, on the grounds that the High Court’s findings were not based on any error of principle or perversity in factual findings, leaving no scope for a fresh evaluation by the Court of Appeal.

However, the Court of Appeal allowed a cross-appeal against the finding that the UK trade mark for the number 32 had not been infringed. The Court of Appeal ruled that the High Court had incorrectly assumed that, where a separate reputation had not been established by use of the trade mark, there could be no infringement under section 10(2) of the Trade Marks Act 1994; rather, the number 32 was a significant part of the trade marks that the High Court had ruled had been infringed, such that there was no basis for saying that the trade mark for the number 32 had not been infringed as well.

1. Legal cashiering handling primarily office funds in a regulated environment as part of a team servicing the Fee Earners in MAB.
2. Providing a cashiering and support service to departments of the firm, across multiple offices especially during a migration of Systems.

Main Duties and Accountabilities:

1. Legal cashiering primarily office funds, banking & production of cheques on a daily basis plus covering client and billing cashiering duties in a regulated environment as part of a team. Supporting colleagues during a major system migration.
2. Taking credit/debit card & cash payments from Clients & processing on accounts system once funds received.
3. Processing of automated payments from 3^rd parties into our account & reconciling of statement.
4. Weekly statement run for credit control
5. On a minimum weekly basis to identify and process transfer of disbursements & transfer of costs  from client account, ensuring compliance with the SRA Account Rules
6. To process multi matter/composite bills manually & electronically on line
7. Assisting Billing cashier during peak times of the month
8. Liaising with departments and clients regarding accounting transactions & handling any queries that may arise
9. Weekly Reports to assist with general housekeeping of matters
10. Bank Reconciliations
11. Client related Staff Expenses
12. Posting of Couriers/Co Sec/On line Searches/PCOL invoices as disbursements
13. Financial Write Offs
14. Support & assistance to the team in credit control

Person Specification

Skills and Experience:

1. Previous legal cashiering
2. Strong IT skills

Personal Qualities:

1. Eager to learn and progress, enquiring mind, problem solver
2. Team player
3. Methodical
4. 100% trustworthy
5. Willingness to go the extra mile.
6. Proactive / flexible
7. Excellent telephone manner
8. An appreciation of the fact that this back-office function is critical to the client’s experience of this firm.

To apply for this position please contact Kirsty Floyd, HR Manager at hr@mablaw.com

It is also hoped that the licence procedure will be simplified, with the creation of “unlimited music events bundles” for a flat annual fee and the simplification of how background music charges are assessed.

In a press release, the EC outlined the main changes that will be made to the data protection regime in the EU::

-          There will be one set of rules across the EU, rather than each EU Member State having its own rules.

-          The scope of the people caught by the data protection law will be increased. The rules will apply to data controllers who are not established within the EU if the data processing relates to offers of goods or services to data subjects within the EU or a monitoring of EU data subjects’ behaviour. Clearly, this is intended to cover large online players from the US such as Google.

-          In addition, what counts as personal data is being widened. Data will be personal data if it is not just data held by the data controller that can identify the individual but also data held by a third party which, in combination with the data held by the data controller, could identify. This could catch rights holders that hand over Internet Protocol addresses to Internet service providers for enforcement of copyright infringement under the Digital Economy Act 2010.

-          There will no longer be an obligation for organisations to notify (or register) all data protection activities to data protection regulators (such as the Information Commissioner’s Office (ICO) in the UK), but only data breaches will need to be notified; however, that will need to take place within 24 hours of becoming aware of the breach. Organisations will need to have continuous monitoring and reporting systems in place at all times. Security breaches must also be notified to data subjects “without undue delay”.

-          In place of general notification obligations, organisations will have to maintain documentation and records showing their processing activities, and be subject to strict audit requirements and produce that to the authorities on demand.

-          Data controllers will also have to comply with training requirements.

-          People will be able to access and transfer their own data more easily. They will have a right to be given their data in a convenient portable format such as a disk or MP3 file. They will also have a right to be told how long their data will be kept for.

-          Data subjects will have a right to be told where the data controller got their data from.

-          There will be a “right to be forgotten” where people will be able to delete their data if there are no grounds for it being retained. This will put a huge burden on Internet businesses in particular, which will have to do what they can to ensure links to the data is deleted by others even after they have deleted it.

-          Member State regulators, such as the ICO, will be strengthened to allow them to better enforce the rules, with possible fines of up to £1m or 2% of a company’s global turnover. The amount of the fine will depend on the nature, gravity and duration of the breach; whether the breach was deliberate or negligent; previous history of breaches; what security measures had been put in place; and the level of co-operation with the authorities.

-          All organisations will have to appoint data protection officers unless they have fewer than 250 employees, in which case they will be exempt from this requirement.

-          Clearer rules for the transfer of data across borders within multi-national organisations will be introduced. In addition, national data protection authorities will need to approve bespoke agreed clauses as an alternative to the standard contractual clauses for transfers between an organisation in one EU country and another organisation outside of the EU.

-          Any consent from a data subject will have to be explicit rather than implied. Any written consent such as a tick-box will need to be distinguishable from other consents. This would mark a change from current online acceptance practice.

-          Data access policies will have to be not only fair but also transparent.

-          The law will move from data being permitted if “not excessive” to effectively minimising the data as it will only be legitimate if the purpose cannot be fulfilled by processing non-personal data.

-          Data processors (people who process data on behalf of data controllers and do not take any decisions in respect of the data) are currently not subject to the data protection requirements. They are only caught under contract law when data controllers (as they are required to do) enter into a written agreement with the data processor to contain certain safeguards. That will change. Under the new regime, data processors will have specific direct obligations to maintain security of data under the law.

-          Data controllers will generally not be able to charge data subjects for data subject access requests.

The proposals will be sent to the European Parliament and the Council of Ministers for discussion, and will take effect two years after they have eventually been adopted.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This proposed law makes depressing reading. The Commission has trumpeted the ease of cost to business, but such a statement totally ignores all the other increases in regulation that this law would introduce. On balance, this will involve much more red tape for business to have to comply with. At a time when SMEs need a helping hand to grow and help to rescue the EU’s economy, this development is not going to be welcomed. Instead of considering SMEs’s legitimate interests, the Commission seems to have been too focused on protecting EU citizens against big US Internet businesses.

“The one plus side is that the new data protection law will be implemented in one consistent way across the whole EU; the major downside, though, is that it will involve much stricter obligations than businesses currently face, including tougher internal programmes and records and quick reports to the regulators and data subjects of data breaches. And there will now be much bigger fines for breaches. Let’s hope some of the provisions are softened before the law is passed.”

The article looks at both the Government’s recent announcement that it intends to compel the courts to ensure that each parent is able to see their children regularly (or even equally) following a separation or divorce and the Norgrove report which advised against a presumption of equality for parents.

So who is right?

A spokesman for the Ministry of Justice said “We are committed to reforming the ‘no win no fee’ system so that legal costs for reasonable compensation claims will be more proportionate, and avoidable claims will be deterred from going to court.”

The spokesman went on to say “this will require changes to legal rules and regulations and we want to give sufficient time to get the complex details right.  We are also conscious that legal business will need sufficient time to plan for the changes, alongside other forthcoming regulatory and funding changes to the industry.  We will therefore implement the new measures, subject to parliamentary approval, in April 2013.”

The President of the London Solicitors Litigation Association, Seamus Smyth, has commented that “the Jackson Consultation process took a long time and highlighted a great deal of disagreement.  Implementing his proposals, even as a whole, would have taken time and would not have been easy but tackling them piecemeal was bound to generate more disagreement and take even longer.  Let’s hope the detail and drafting quality of the outcome justifies the wait.”

Earlier in the debate Lord Wallace had told peers that the proposed reforms can “help business and other defendants who have to spend too much time and money in dealing with avoidable litigation – actual or threatened”.

The bill continues its passage through the Lords.

Comment

Tim Constable. Head of the Litigation and Dispute Resolution Department at Matthew Arnold and Baldwin LLP commented: “Many see these aspects of the Jackson reforms as a victory for the insurance lobby.  I do not differ.  I will be interested to see how quickly or enthusiastically a market develops for any new type of funding system given the understandable fear that time and money spent on developing that system will come to nothing in 10 years time when another government decides on another system. Once bitten, twice shy.”

The main issue was whether the Vendors could claim that they had a right of occupation which was an overriding interest within paragraph 2 of Schedule 3 to the Land Registration Act 2002 (“the Act”) binding on the lenders by virtue of s29(2)(a)(ii)? The following issues were considered:

• First of all the Court of Appeal considered the transaction generally.  The correct approach was that there were two transactions, one for the sale of the freehold and one for the leaseback to the Vendors upon completion.  No reference was made in any of the contracts for sale to the grant of a leaseback to the Vendors.  The clear impression created by the contracts was that the Vendors would be selling without reserving any beneficial interest or other rights in the property.  There was nothing to alert the lenders to the possibility that the Vendors expected to remain in possession after completion or that the Purchasers would obtain anything less than the entire legal and beneficial interest in the properties.
• Reference was made to the House of Lords case of Abbey National Building Society v Cann.  Mrs Cann had contributed to the purchase price of a property from money she received on the sale of her previous property.  She was given an assurance by her son that she would always have a roof over her head.  She claimed that she had an equitable interest in the property by virtue of her actual occupation. The House of Lords held that to acquire an overriding interest against a lender by virtue of occupation, the person claiming the interest had to have been in actual occupation at the time of the creation of the legal charge. Where a purchaser relied on a bank or building society loan to complete his purchase, the transaction – that is the transfer of the property and the completion of the mortgage – were one indivisible transaction, and that there was no moment in time (scintilla temporis) during which the property vested free of the mortgage. The House of Lords had held that a purchaser who can only complete the transaction by borrowing money cannot in reality ever be said to have acquired even for a moment of time an interest in land whereby he could grant interests having priority over the mortgage.  Accordingly Mrs Cann took subject to the lender’s charge.
• The Vendors sought to distinguish Cann.  They asserted that Mrs Cann’s beneficial interest arose from the proceeds of sale of her previous house whereas the Vendors in the present case were already in occupation of the properties.  This transaction reflected a change in social and economic conditions created by the fact that people live longer and many have a need to release equity from their property to meet the debts and living expenses to enable them to continue to live in their homes.  The driver of this economic activity was the need or desire of people usually of modest means advancing age and limited legal knowledge and experience to stay in possession of their homes. Lenders could easily protect themselves by making direct enquiry of occupying vendors as to what right they thought they would have on or after completion in relation to the property.
• The Court of Appeal decided that it was not possible to distinguish Cann.  Mrs Cann gave up occupation of her former home in which she had a beneficial interest.  The driver of these transactions was the Vendors’ need or desire to sell the properties.  Without such a sale the charges on the Vendor’s properties would not be discharged.  There was no reason to suppose that the purchase price would not be funded in the usual way by secured loans.  Finally, it would not be appropriate to place on the lenders the risk of carelessness or fraud in the carrying out of the promises or representation made to the Vendors because the lenders could have and should have made direct enquiries to the Vendors.  If persons intend to retain any interest in their property after completion they should make that clear in the contractual and associated documents, the inspection of which will form the basis of the report on title.  There is, therefore, no point in a lender making direct enquires of a vendor as opposed to the other occupier.  It would be difficult to envisage that it would be appropriate or proper for the lender to by-pass the vendor’s solicitors and communicate directly with the vendor.
• The Vendors also argued that between the sale of registered land and the registration of the transfer, the purchaser was by, virtue of the Act, entitled to exercise the owner’s powers in relation to a registered estate including the power to make a lease. A lease of 7 years does not have to be registered.  It followed that the Vendor’s rights under a lease for 7 years or less had priority over the lender’s right under a subsequently registered charge even though the charge was executed before the grant of the lease.
• The Court of Appeal held that any leases of 7 years would have expired and therefore it was hard to see its relevance. In any event, prior to registration of the transfer, the grant of any lease takes effect in equity only and does not fall within the Act at all.  The Court of Appeal did not accept that a lease of 7 years or less granted by the purchaser pending his registration acquired priority even where the lease is granted and the charge is executed within the priority period conferred by the mortgagee’s official search. Prior to registration the purchaser’s interest in the property can only subsist in equity.  As a matter of basic land law, an equitable owner of land cannot grant a legal interest. 

Accordingly the appeals were dismissed and the lenders were entitled to the possession orders the right to obtain vacant possession of the properties.  The Vendors had not acquired any interest which the lenders were subject to and the lender’s charge took priority.  The problem had arisen because the contracts for sale had not given details of the contractual deal.  If this had been clearly stated and recorded then it would have alerted the lenders.  As the Court of Appeal noted, this omission seems, on the face of it, plainly inconsistent with proper conveyancing practice. The Vendors may now consider whether to make an appeal to the Supreme Court.

Denise Cook v Mortgage Business PLC and other related cases [2012] EWCA Civ 17

The Information Tribunal has disagreed with the Information Commissioner’s ruling, and ruled that, if the email still existed, it was still “held” and therefore the University should disclose the email or issue a valid refusal notice.

Whilst this ruling relates to the Environmental Information Regulations, it is based on the same principles as disclosures under the Freedom of Information Act 2000 and is an interesting precedent.

Whilst this ruling relates to the Environmental Information Regulations, it is based on the same principles as disclosures under the Freedom of Information Act 2000 and is an interesting precedent.

The Department for Business, Innovation and Skills (BIS) will fund mediation training for employees from a group of 24 SMEs in each pilot area later this year. A network of trained mediators will be available to provide mediation to other organisations in their respective network.

An open tender to deliver the mediation training for prospective candidates has been published on the Contracts Finder website. The 24 SMEs in each area will be identified and selected later in 2012, once the mediation training contract has been awarded.

It is hoped that the pilot scheme will help to resolve workplace disputes before they escalate and need to be resolved at an employment tribunal.

Since coming to power, the Government has made it clear that it intends to create more opportunities for workplace disputes to be resolved outside the tribunals, and this pilot scheme is a further step in this direction. In November 2011, the Government published its official response to its Resolving Workplace Disputes consultation on reforming the employment tribunal system and announced that it intended to introduce a requirement for all potential tribunal claims to be lodged with Acas, so that parties have the opportunity to resolve their dispute through early conciliation. Click here for more details.

The pilots will run for 12 months and, if successful, the Government may introduce similar schemes in other parts of the country.

Social networking’s popularity has soared in the last few years. The likes of Facebook, Twitter and LinkedIn continue to be among the top 5 most visited sites on the world wide web.

This usage has spilled over into the work place.

How does this affect employers?
Social networking offers employers both a significant opportunity and a new range of risks relating to the activities of its employees. 

Matthew Arnold & Baldwin are holding an event on social networking from an employer’s point of view.

The social networking talk will cover:
• Dealing with employees’ potentially damaging postings on social networking sites;
• The risks and permitted parameters involved in monitoring employees’ internet use;
• “Ownership” of social network client lists;
• The use of social networking sites as a recruitment tool and the legal risks involved; and
• There will be a round up of new legislation

Click here to register.

Agenda:
12.30pm  Arrival, lunch and refreshments
12.55 Introduction- Michael Delaney, Partner
1.00pm  Social Networking Presentation- Bob Fahy, Associate
1.40pm  Employment law update including:
- Government proposals to changes in Tribunal reform and employment law
- Additional Paternity leave
- Bribery Act
Rebecca Fox, Solicitor
1.55pm  Q&A
2.00pm Finish

Venue:                                                                                                          
21 Station Road
Watford
WD17 1H

Click here to register.

From 1 October 2012, and depending on the size of the PAYE scheme, employers will have to enrol eligible employees automatically into a qualifying workplace pension scheme or the National Employment Savings Trust (NEST). Employers will also have to make mandatory contributions.

Under the scheme, employers will be given a “staging date” from which they must auto-enrol eligible employees if they are using a defined-contribution scheme or NEST as their qualifying workplace pension scheme.

On 25 January 2012, the Government published a revised auto-enrolment staging timetable. Click here to see the new timetable. The publication of the new timetable follows the Government’s announcement in November 2011 that small businesses with fewer than 50 employees would begin auto-enrolment in May 2015, instead of April 2014. (Click here for further details.) Under the revised timetable, there will be no change to the staging dates of employers with 250 or more employees. All existing businesses will have enrolled their staff by April 2017, followed by all new employers by February 2018.

The Pensions Regulator has published some useful information on auto-enrolment on its website. Click here.

If you have any concerns about how auto-enrolment will affect your business, please contact me at michael.delaney@mablaw.com.

The Court of Appeal reversed the decision of the PCC on the grounds that the PCC had made two errors in light of the prior art:

1. The PCC had failed to identify the correct differences between the prior art and the claims made.
2. The PCC had failed to address whether the differences between the prior art and the claims made amounted to steps that would have been obvious to a person skilled in the art without any knowledge of the alleged invention, or whether those steps required a degree of invention.

The Government’s actions are intended to take effect later this year, and will implement the Consumer Rights Directive, which was approved by the European Union in October last year.

MM issued proceedings for infringement of copyright, alleging that the BBC had used his original artistic work in the “Bounce Bunch”, which he had provided to the BBC, in producing “Kerwhizz”, and that the characters were so similar that they could only have been created by the BBC by copying his own characters. MM showed that there were extensive similarities and that the BBC had prior access to his work (which had been available online even before he submitted it to the BBC), such that the Patents County Court passed the burden of proof on to the BBC to show that the characters in “Kerwhizz” did not come about through copying.

The Patents County Court ruled that there had not been any copyright infringement, on the grounds that the BBC’s evidence clearly showed that the “Kerwhizz” creations did not come about through copying the “Bounce Bunch” characters. There was no causal connection between the two. Rather, the Patents County Court found that the BBC witnesses had shown on the evidence that they had already provided the Kerwhizz characters prior to the communication from MM. In any event, “Bounce Bunch” designs were simple, generic and not particularly memorable, such that, even if a BBC designer saw the designs, subconscious copying of those designs was extremely unlikely.

One high-profile change to the industry is the patent cliff (the sudden falling off of many patents that will stifle big pharma’s revenues that they can use to invest in R&D in new drugs).  But there are many more challenges and changes.  It is hard to over-state the social and technological changes in the environment, and like any evolution the result will be a different-looking industry to what we are faced with today.  Industry players will have to change to meet the challenges and opportunities arising out of the different environment, some new players may emerge and and some may cease to exist.  But ignoring the changes could lead to current industry players ending up the same way as the dinosaurs.

Professor Smith combined research, clear intelligence and thought with a very practical and down-to-earth analysis, coming from years of experience of working in the industry.

It was also a great event to run with the Watford Chamber of Commerce.  With its excellent transport links and commitment to moving to the future with the £1.5bn Health Campus within the town, Watford and its surrounding areas are blessed with a significant number of businesses in the pharma sector. 

Paul Gershlick, Head of Pharmaceuticals and Life Sciences at MAB, comments: “We were delighted to have someone of the calibre of Professor Smith speak. He is a recognised leader in his field.  There was a lively Q&A session afterwards. It was also great to see the amount of excellent networking that took place.  Many of our clients and contacts made new connections on the day and the feedback received from the 100 attendees was generally excellent. 

“Our motto in the Pharmaceuticals and Life Sciences Sector group at MAB is “Bringing excellence to life, together”.  From the success of yesterday’s event, we hope we have lived up to that.”

 The trial concerned a man who had been accused of grievous bodily harm with intent and the internet research carried out by Dr Dallas revealed that the man who stood accused, had previously been accused and acquitted of rape (the man has subsequently been retried, convicted and jailed).

 Ms Dallas has been given a sixth month prison sentence and been told that she will have to serve at least 3 months in jail before being released on licence.  She was refused permission to appeal to the Supreme Court as it was held that she had “deliberately disobeyed” the trial judge’s express instructions not to research the internet.  The trial judge said that the internet research had caused great damage to the administration of justice and had greatly prejudiced the jury.   She had also caused unnecessary public expense and wasted the time of other members of the jury.

Recent cases

The jailing of Ms Dallas comes on the heels of a young Manchester juror who in December 2011, pretended he was sick and lied to court officials at Manchester Crown Court where he was undertaking jury service  so that he could attend a west end musical in London. In this instance, the judge ordered the juror to serve a 14 day sentence at a Young Offenders’ Institution saying that the juror has lied frivolously to court officials.

Back in June 2011, a juror was sentenced to 8 months in prison for contempt of court for having contacted a defendant via the social networking site Facebook and causing the collapse of a £6m drugs trial. 

Comment

It is clear from the jailing of Ms Dallas for contempt of court and the other cases highlighted above, that the UK judiciary is sending out a clear message to all serving and potential jurors who may be tempted to use the internet and social media sites to the detriment of a trial for which they are sitting on the jury.

Jurors are sworn in and must take an oath or make an affirmation of a promise to listen to the case carefully and to give a fair verdict.  If this oath is disobeyed, a juror will be held in contempt of court.

However, with access to the internet at the click of a phone, laptop or ipad, the cases above illustrate how difficult it may be to prevent those serving on a jury from accessing the internet and undertaking research, or using social networking sites to provide commentary about a trial during the trial itself (see Contempt of Court Act 1981).

The integrity of our judicial process must be preserved but, faced with the onslaught of modern technology/communication, this may be increasingly hard for the judiciary.

 For further information see also:

http://www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Goingtocourt/DG_072707  and

http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-16676871

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This shows an interesting strategy in its fight to stamp out bribery. Despite the bribes having taken place in another country, this still fell within the SFO’s remit. Innocent people should still do their due diligence on the foreign businesses in which they invest, and they should try to make sure that the business is conducted properly. Otherwise, they can face clawback for dividends paid out to them despite not being at fault or having any knowledge of the issue.”

How the plans will work in practice is unclear, especially given that the Government’s plans involve handing down more power for control of budgets locally, as the medical practitioner has been held out as having better expertise to decide what to spend the medical budget on.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “Something that may soon alleviate the unfairness of the postcode lottery is the Patent Cliff – under which many blockbusting drugs are about to come off patent and be open to competition by much cheaper generic equivalents. Lipitor, for example, has already recently come off patent.”

In November 2011, the transport Minister Norman Baker launched the ‘Anywhere Working’ consortium, with its purpose being to enable employers to understand the benefits of flexible working. The consortium aims to help organisations achieve greater productivity, reduce employee stress and absenteeism, and reduce carbon emissions generated by business travel.

The Anywhere Working consortium is backed by big businesses (including Business in the Community, Microsoft, Nokia, Nuffield, Vodafone and Regus) and The Trades Union Congress.

On 16 January 2012, the consortium set up a new portal (click here) which contains a number of resources for employers and employees, including training, guidance, case studies and product offers. Organisations can also use the portal’s Savings Calculator to measure how much time, money and carbon energy they can save by working more flexibly.

The consortium is holding an ‘Anywhere Working Week’, beginning on 27 February 2012, and will provide additional guidance to organisations to help them learn more about flexible working and how it can benefit them and their workforce.

The EU Parental Leave Directive, which comes into force on 8 March 2012, increases the minimum parental leave provision from three to four months. Although member states should implement the Directive by 8 March 2012, member states can take an extra year for implementation if required.

BIS has said that it will utilise the additional year’s grace and will implement the changes in March 2013.

To find out what is changing in employment law in 2012, please click here.

Despite the exact photos being different, the judge ruled that New English Teas’ subsequent photo had infringed what he called the copyright in Temple Island’s “photographic work”. He described this as being the precise motif, the angle of shot, the light and shade, illumination and adaptation by digital manipulation after the event. It was more than being in the right place at the right time, as thought and effort had gone into creating the exact combination of features in a certain way which had made the photo look attractive. Whether it is copied in each case is a matter of fact, but in this case the judge decided that there was sufficient similarity. Although he said he struggled with the decision, he dismissed the argument that the ruling would give one person exclusivity over certain landmarks – it all came down to the way they were represented in a particular aesthetic way.

When the government announced this change in October 2011, it did not confirm whether it would affect existing employees (who may already have qualified for unfair dismissal rights) or just new joiners.

The Department for Business, Innovation and Skills (BIS) has now confirmed that the regulations that will implement the change will, subject to Parliamentary approval, state that the new two-year qualifying period will only apply to employees whose employment begins on or after 6 April 2012. Employees who are already in employment before that date will retain the current one-year qualifying period.

The Government estimates that the change will save businesses £6m per year, with a reduction of 2,000 unfair dismissal claims per year.

For further details of other employment law changes taking place in 2012, please click here.

“…we are instructed to put forward the following offer, this offer is made pursuant to Part 36 of the CPR and remains open for acceptance for a period of 21 days, from your receipt of this offer letter, thereafter it can only be accepted if we agree the liability for costs or the Court gives permission..”

The court in this matter analysed some of the very many cases on Part 36.  In particular they drew attention to the Gibbon authority where the court held that:

• Part 36 is a self-contained code.  Parties are not bound to make use of the mechanism provided by Part 36, but if they wish to take advantage of the particular consequences for costs and other matters that flow from making a Part 36 offer, in relation to which the court’s discretion is much more confined, they must follow its requirements.
• Although basic concepts of offer and acceptance clearly underpin Part 36, it did not follow that Part 36 should be understood as incorporating all the rules of law governing the formation of contracts, some of which are very technical.
• As such the rejection of an offer did not make it incapable of subsequent acceptance.  Part 36 allows a defendant or a claimant to decide whether to leave an offer open for acceptance or to withdraw it and make another offer later.

In the case of C v D, the court were concerned with a letter where the offer was open for 21 days from the date of that letter and the question was whether the offer lapsed after 21 days.  In that case the court decided that:

• If a claimant wishes to make a time limited offer, in the sense that the offer is to lapse of its own accord at the end of a stipulated period, then such an offer cannot be a Part 36 offer.
• An offer presented as a Part 36 offer and otherwise complying with its form will not readily be interpreted in a way which would prevent it from being a Part 36 offer.
• If an offeror wishes to bring his Part 36 offer to an end, so that it cannot be accepted then he must serve a formal notice of withdrawal.
• A time limited offer does not comply with Part 36 and so when interpreting such an offer, it should be approached on the basis that the party making the offer and the party receiving it, appreciated that fact.

In the Huntley case, which was a claim for personal injuries, the offer was defective because it did not state the added requirement for personal injuries that any damages would take the form of periodical payments.  The court held that it did not comply with Part 36, but awarded the same consequences under Part 44.3.4 (c) instead.

In Carillon the offer contained no time limits, but invited the offeree to respond within the next 7 days.  The failure to spell out a 21 day period was an important omission because the time limits within Part 36 provide a time-table and also point out to the offeree the cost consequences of not complying.

In Shah the offer was open for acceptance for 21 days after receipt of the letter.  Following C v D the Judge held that this did not prevent it from being a Part 36 offer, but since the letter offered predictive costs in line with the Road Traffic regime which were less generous than the costs which he would have been entitled under Part 36, the Judge held that it was not a Part 36 offer.

On the facts of this case, the court considered two questions concerning the offer letter:

• Whether it failed to comply with Part 36 (2) (b) because it did not on its face that it was intended to have the consequences of Part 36.
• Whether it was inconsistent with Part 36 because after 21 days it can only be accepted “if we agree the liability for costs or the court gives permission”.

Although the letter referred to Part 36 in two places including one in bold type, the court did not accept that it was a Part 36 offer because the provisions of Part 36. 2 state that if an offer is intended to have the costs consequences of Part 36 it must state on its face that it was intended to have the consequence of Part 36, which it did not do so. In addition, it was not clear that the claimant intended the letter to have the consequences of the new Part 36 as the offer was inconsistent with Part 36 and further the letter did not refer to all the consequences of Part 36.

Having decided that the offer letter was not compliant with Part 36.2 it was not strictly necessary to consider the second issue, but having heard arguments, the Judge decided that the offer did not remain open for acceptance after 21 days unless one of the conditions in specified were satisfied and therefore as a matter of construction the offer was not open for acceptance after 21 days and therefore was not a Part 36 offer.

It seems that the claimant intended to rely on Part 36, but because Part 36 was not followed strictly, the offer was held not to be compliant.  This is another case which demonstrates how careful you must be when preparing Part 36 offers and how by breaching a technicality despite  sometimes the very best of intentions a court may decide that the offer is not compliant. Part 36 featured as part of Lord Jackson’s review and led to a further CPR amendment to make it clear that in relation to any money claim or money element of a claim, when considering whether a judgment obtained is ‘more advantageous’ or ‘at least as advantageous’ this means better in money terms by any amount, however small. The other issue relating to Part 36 which is to be considered is where a defendant rejects a claimant’s offer, but fails to do better at trial, whether the claimant’s recovery should be enhanced by 10%. This could be the subject of further consultation. Clearly we have not reached the end of considering the impact of Part 36.

Norma Lee Thewlis v Groupama Insurance Company Limited [2012] EWCH 3 (TCC)

The Government is asking for opinions on regulations that affect the private rented sector, social housing, construction, and the building regulations. Full details are here.

In the Government’s press release on the issue, Communities Minister Baroness Hanham said:

“For years builders, businesses, landlords and residents have had to navigate an increasingly complicated set of rules and regulations to do things by the book. Now we’re giving them the chance to tell us what they would like us to change so that building a new home or property is a smoother ride.”

Interested parties have four more weeks to put forward their views and this can be done on the Red tape challenge website. This website has full details of the challenge and you can also read the opinions of those who have already commented (and respond to those comments if you so wish.)

Many of these volunteers will be employees, so, in order to minimise the impact their absence may have on workplace productivity, Acas has advised employers to start talking to them now so suitable arrangements can be made.

To help employers, Acas has issued new guidance on employers’ legal obligations to employees who wish to fulfil their volunteering commitments. This provides advice on the following key questions which will inevitably arise during discussions between an employer and employee:

1. Three of my staff have got volunteer positions at the Olympics. I can only let one go. What’s the best way of handling this?

2. I have a member of staff who has got a volunteer place at the Olympics. Do they need to use their own holiday?

3. I have a member of staff who has got a volunteer place at the Olympics. Am I expected to pay for them while they volunteer?

To read this guidance (and answers to the above questions), please click here.

One opportunity has been seized by big Pharma company, Bristol-Myers Squibb, through its recent acquisition of Inhibitex, a biopharmaceutical company, at a cost of US$2.5 billion. Inhibitex is currently developing a promising new hepatitis C drug, which though currently only in Phase II development has shown great potential. With over 150 million people worldwide suffering from hepatitis C and over 75% of liver disease being attributed to the illness, producing an effective drug to combat or manage the disease is foremost in the mind of the Pharma industry today; and Bristol-Myers Squibb is not alone. Only last November, Gilead Sciences, Inc agreed to pay US$11 billion for Pharmasset, Inc, another company refocusing on the development of further hepatitis C treatments and with Merck, Vertex and Johnson & Johnson also rumoured to be targeting the hepatitis C market, we can see that big Pharma are on the hunt.

Laura Mole, a member of MAB’s Pharmaceutical and Life Sciences Sector team says, “This latest acquisition by Bristol-Myers Squibb is living proof that the industry is changing and big Pharma are almost panic buying in order to build and diversify their portfolios. This is shown by the acquisition of not only market ready products but also drugs still in the development stages. It is clear that with the Patent Cliff threatening, and with Bristol-Myers Squibb itself to fall victim with its soon-to-expire patent protection on blockbuster drug Plavix, any opportunity to grow and protect will be taken. Small/mid sized Pharma had better be ready for the bidding war to come.”

In AstraZeneca’s case, it has established the Science and Technology Integration Office, which will develop collaborative projects with other businesses, universities, governments and charities. AstraZeneca is continuing with its quest to find “the next big thing” with innovation but through cheaper means – effectively building its links with outside providers of research and development.  Meanwhile, some others in the industry such as GSK, the UK’s biggest pharma company, are looking to mitigate against the dangers by diversifying their operations.

AstraZeneca has already signed a deal last month with the Medical Research Council, under which academics can investigate the use of 22 of AstraZeneca’s clinical compounds in treating diseases. AstraZeneca has also recently entered into an agreement with IMS Health, to use IMS Health’s data to assess how well its drugs respond to patients, so as to be able to prove their value-for-money and usefulness to the customers.

The loss of patents comes against a backdrop of attacks on the prices paid by public health systems for drugs in the face of the debt crisis. With harder regulatory burdens to get any new drugs to pass clinical trials and fewer blockbuster possibilities, pharma companies are affected whichever way you turn.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, predicts: “The combined effects of the patent cliff and other factors are going to force the pharma industry into change.  Things cannot continue to go on the way they are currently doing. It is of great concern that this survey shows that most people think that the industry is not adapting fast enough to the external factors affecting it. If the industry does not change quicker, this will have catastrophic effects on the companies that invest in developing and producing the new drugs that improve people’s health.”

On 19 June 2007, Amex issued a Default Notice asserting a breach of the agreement requiring remedial action in accordance with section 87(1) of the Consumer Credit Act 1974 (“the Act”).  Mr Brandon did not make the minimum payment and so on 11 July 2007, Amex sent Mr Brandon a Notice of Cancellation.

Amex then issued proceedings and Amex applied for summary judgment.  For Amex to succeed, Mr Brandon must have no real prospect of successfully defending the claim or issue in accordance with CPR Part 24.2(a)(ii).

Before the District Judge, Mr Brandon argued that the default notice required payment within 14 calendar days from the date of this Default Notice, but no allowance was made for the fact that he would not receive this notice on the same day and so he was given less than 14 days before the agreement was cancelled.  Applying the usual Civil Procedure Rules on service the District Judge gave summary judgment for Amex regarding the default as de minimis (minimal) and something he was prepared to overlook. Subsequently, on appeal, the Judge held that as no enforcement action was taken within the 14 days, the argument was not relevant because Mr Brandon had not suffered “any prejudice at all by virtue of that technical breach…” At the appeal stage, Amex also sought to rely on the contractual agreement which entitled Amex to terminate as an alternative to the Default Notice.  The Judge considered that this argument had not “simply been sprung” on Mr Brandon as it had been flagged previously.

The Court of Appeal noted that Mr Brandon’s stance was devoid of merit, but it could not conclude that there was no real prospect of a successful defence.

• On the first issue of the validity of the Default Notice the court was of the view that Amex was not entitled to summary judgment.  Mr Brandon’s defence could not be dismissed “as being unreal”.
• As a matter of construction, the Court of Appeal could not accept that the 14 day period ran from service of the Default Notice as opposed to the date of the Default Notice. It could not be presumed that the Default Notice would have been served less than two days after being posted.
• As a matter of construction, the Default Notice had not or may not have allowed the minimum statutory period for Mr Brandon to remedy the breach and so the defect could not be overlooked as de minimis.
• As regards the arguments on contractual termination, the Court of Appeal considered whether it could rely on a clause in the agreement and proceed on the basis of non-default termination.  The court was in broad agreement that sections 76 and 98 did not apply to this agreement.  However, there had been no mention of this before the District Judge and the point was only mentioned in the skeleton argument before the Judge.  The Court of Appeal considered that this was too significant a change of case and therefore it would not be fair to permit summary judgment on the basis of contractual determination without proper arguments.

Accordingly, Amex was not entitled to summary judgment and this matter would proceed to trial.  As the Court of Appeal noted “regardless of the outcome of the appeal, Mr Brandon is a bad credit risk; for this conclusion, he has only himself to blame.”

Ian Karl Robert Brandon v American Express Services Europe Ltd [2011] EWCA Civ 1187

Paul Gershlick, Head of Pharmaceuticals and Life Sciences at Partner at Matthew Arnold & Baldwin LLP and a data protection law specialist, comments: “We need to understand the facts as the ICO sees them and then make a judgement, but such a large fine seems harsh given that the hospital appear to have been the victim and no data actually got into the public domain through the hospital’s action with the police when the items appeared on eBay. This action signals the tough intentions of the UK’s data protection regulator in dealing with data security breaches involving people’s health data.”