Intellectual property & copyright

Copyright is a form of intellectual property right which protects a variety of different works, including music, written words (such as lyrics or novels), and pictures. It also applies to works such as films and musical performances.

The Scope of Copyright

This type of intellectual property right is an automatic right. This means that it is not necessary for you to apply for it in order to be protected by it. If work is copyrighted, another should only use that work with the owner’s permission.

This is true even when attempting to reproduce the copyrighted work in a different medium. For example, if a novel is copyrighted, you cannot make it into a play without the owner’s permission.

It is important to realise however, that the scope of copyright does not extend to protecting ideas which will be used for a work. It is only once the work is fully finished that it gains automatic copyright protection. Continue reading

Lease advice – introduction to leases

A lease is a contractual agreement between the lesee (user) and the lessor (owner). By singing the lease, the lesee obliges himself to pay the lessor a certain sum for use of an asset. An asset could be tangible such as real estate or intangible such as computer software (licence). In this article, as property solicitors, we will focus on commercial and non-commercial property rental arrangements. Continue reading

Director duties and some common business mistakes

Directors are persons in position of trust on behalf of the company’s shareholders. Their main duty is to ensure that the company is effectively managed for the benefit of all of its members. Additionally, the prime duty is reinforced and supported by a number of statutory duties contained in sections 172-177 of the Companies Act 2006. There are also a number of other regulations applicable to directors. In this article we will focus on the main statutory and non-statutory directors’ responsibilities and the most common ways in which directors can abuse their obligations, but legal advice is always worth taking – if nothing else, according to Sess Sigre an expert in business law at Turbervilles law firm, obtaining advice shows that a director has not simply acted without thought of consequence. Taking advice therefore adds a layer of extra protection. Another alternative is for a director to seek an indemnity from the company for difficult decisions. Continue reading

Important personal injury damages case at Supreme Court

Tackling fraudulent third party claims are critical in today’s society as they have the potential to save the industry approximately £100 million each year. With this in mind, Zurich fraud executives are confident that they are setting a ground breaking precedent which will leave these fraudulent claimants with no winning claims.

An example of fraudulent claims – a man from Stockport has brought forward a false claim. He stated that he has suffered life-changing injuries after falling off a forklift truck in the course of his employment. This accent allegedly caused him to fracture his ankle, and has had a detrimental effect to his future career. As a result, he is claiming £838,000 through his personal injury claim. His hearing is now preparing for a gruelling two days at the Supreme Court next week.

This man could face bringing a claim for no gain as a recent judgment has ruled in Zurich’s favour. This could lead to the industry no longer compensating the claims of third parties if part of the claim has been proven to be fraudulent.

John Latter, Zurich’s casualty claims director has described this hearing as having the potential of being “a real game changer” for the insurance industry. This would be if the majority of the five judges are in favour of Zurich’s bid of not paying the claimant a sum of £88,716. This was awarded to the claimant in 2010.

At Zurich’s London Underwriting Centre base, John Latter announced that this case is of vital importance to the insurance industry. He described it has a ground breaking decision and having the potential to create a landmark precedent for the industry of how to deal with claims which contain fraudulent components.

The whole point of the case is to try give insurers and claimants who are insured different remedies than those which are already being used. It is thought that the remedies in existence are not effective when combined with fraudulent claims. John Latter stated that he would like to overturn the current case law to allow insurers to deter fraudulent claims from being made and tackle the issue from the root.

A partner at Berrymans Lace Mawer, David Spencer, is representing Zurich. He explained that this case has reached stages so advanced in the legal process due to previous landmark cases of Shah v Ul Haq and Widlake v BAA. Zurich’s case plans to overturn both these cases in order to create new case law and have a positive influence on future cases in the sector.

Third party fraud claims are an issue with today’s compensation culture and increase of claims. With individuals being able claiming thousands through merely fabricating genuine claims and increasing their injury compensation, the current remedies available are not just in a modern democracy.

If Zurich’s claim does succeed and creates a landmark case for future cases, the industry will likely be able to deal with fraudulent cases in a more positive manner, making the current remedies unavailable to those fraudulent cases. This will not only deter fraudulent cases in arising, but also reduce the premiums of current remedies and have a beneficial effect on the UK economy.

Due diligence concept in law and risk management


Due diligence is the term used to describe an investigation an individual would carry out regarding a potential investment. This investigation will check all the facts concerning the investment, and evidence their truthfulness. The term is also used to describe the care which a reasonable person needs to take before entering into an agreement/an investment with another. This includes carrying out an investigation into the potential investment.

Due Diligence as a defence

Due diligence can be used as a defence, providing the person can prove they took steps which are considered reasonable and utilized ‘due diligence’ in attempting to steer clear of the offence. If these aspects can be proved, it is likely they will be acquitted. What amounts to due diligence will depend on the specifics of each individual case.

What Happens if I do Nothing?

In order to satisfy the requirements of due diligence, it is accepted by the courts that some form of positive action is required. It is therefore not sufficient to do nothing and yet attempt to use the defence of due diligence.

If an individual does take some form of positive action, yet the action is not enough to warrant being reasonable, then it is likely the defence will fail.

What Amounts to ‘Reasonable Steps’?

What action is classified as ‘reasonable steps’ depends on all the circumstances of each individual case. Factors that are taken into account include the amount of risk, the size of the businesses involved and the impact of the failure of the investment/agreement.

Factors that include being ignorant as to the law, not having common sense, or not being able to speak English properly, will not be taken into consideration when deciding what action amounts to a reasonable step.

It can be quite difficult to quantify what is reasonable, as there is not one simple definition of what being ‘reasonable’ entails; and of course, acting reasonably differs with each circumstance. However, if you spend time thinking about what could potentially go wrong in your business, assessing possible risks and devising mechanisms to deal with these risks, it is likely that you would satisfy the definition of having taken reasonable steps, and acting with due diligence. When you are assessing possible risks, it is imperative you break down each section of your business, and analyse risks associated with each section. Depending on the nature of the services you provide, including any goods you supply, you should also be aware how these goods and services are being used, and how other organisations are marketing them.

Devising a System of Risk Assessment and Checks

If you run a business, and want to act with due diligence, one of the ways you can do this is by devising a system of risk assessment and checks in your workplace. If one of these systems is in place however, it must be functioning properly. This requires continuous monitoring and reviewing.

Once a system has been established, your business should consider providing training and support to staff for all new systems implemented. This training and support should not just include training on the new system, but should also include training on the renewal of systems and the reviewing and updating of current systems. This training and support should be made available to all members of staff, irrespective of whether it applies directly to their department or not. In order for an organisation to act with due diligence, it should ensure that all its employees, as a team, are well informed about the way the business is run, and also know what to should a risk assessment flag up any business issues which need to be dealt with.

Agency Workers

There are currently around 17,000 agencies which operate in the UK and the conduct of these agencies is regulated by the Employment Agencies Act 1973.

The Employment Agencies Act, amongst other things, gives guidelines on how an employee’s experience should be assessed, it prohibits the charging of fees upfront for most agencies and makes it an offence for agencies to advertise jobs which don’t exist.

The Conduct of Employment Agencies and Employment Businesses Regulations 2003 supports the Employment Agencies Act and brings with it it’s own set of rules and regulations to which agencies must adhere.

These regulations state that:

  • The agency cannot share the personal details of an agency worker
  • The agency cannot send agency workers to employers to act as strike breakers
  • The agency cannot advertise non-existent positions
  • The agency cannot withhold an agency worker’s pay, even when the agency worker has no timesheets
  • The agency cannot charge the agency worker any fees for providing their work
  • The agency will be required to record the standards of health and safety of the employer where the agency worker is sent
  • The agency will be required to provide the agency worker with written documentation of that worker’s hours, pay and should inform them of their contract status

However, because agency workers are not considered employees they rarely have any rights under the Employment Rights Act 1996. What they do have to protect them is the Temporary and Agency Workers (Equal Treatment) Bill which basically calls for the equal rights of agency workers who do the same or similar job as permanent employees.

The bill states that:

  • The agency worker is entitled to equal pay
  • The agency worker is entitled to equal paid holidays
  • The duration of time an agency worker spends working should be equal to that of a permanent employee in the same job
  • The agency worker is entitled to the same amount of rest periods
  • The agency worker is entitled to equal time off for parenting reasons (women only)
  • The agency worker is entitled to have the same action taken in instances when they have been discriminated against on the grounds of their ethnic origin or race, age, disabilities, sex, religion or beliefs or sexual orientation

What the bill doesn’t protect the agency worker against is:

  • The agency worker’s right to paternity or parental leave
  • The agency worker’s right to redundancy pay
  • The agency worker’s right to a written contractual statement
  • The agency worker’s right to a reasonable term of notice before dismissal
  • The agency worker’s right to put in a request for flexible working time
  • The agency worker’s right to governmental compensation when the employer the agency worker was working for goes insolvent

However, the bill has enabled more agency workers to follow up cases of unfair dismissal through employment tribunals although, this too is a tricky area because the agency worker would first have to prove that they were classed as an employee by the employer responsible for their dismissal and secondly, would need to be able to prove that their dismissal was in fact unfair.

Generally, to prove a case of unfair dismissal, an individual will need to show that one of their rights has been breached by the employer but, if they are not classed as an employee then most of the basic rights they would have under the Employment Rights Act 1996 do not actually apply to them.

This would mean that there are very few rights other than those covered in the bill which can be breached and none of those rights cover the area of dismissal.

Another act to protect agency workers was introduced after the cockling disaster at Morecambe Bay in 2004 where a group of agency workers were cockle picking at night when they were cut of by the incoming tide and 21 of the workers were drowned.

The sad fact is that these underpaid agency workers risked and lost their lives for the promise of just £5 for every 25 kg of cockles they managed to collect.

The act brought in after this disaster was The Gangmasters (Licensing) Act and it requires all agencies providing work in the food packing, shell fishing and agricultural sectors to operate under a licence which enforces the fair treatment of all employees.

These types of agencies are often known as ‘gangmasters’, hence the name of the act.

Placing a caveat on a will

Caveat on will

What is a caveat?

A caveat is a legal notice to suspend proceedings until the person notifying is given a hearing. A caveat is usually placed on a will if someone disputes the will after the death of the testator (person who made the will). If someone else applies for a grant of probate (see below) the caveator (person who placed the caveat) will be given warning.

What is a grant of probate?

A grant of probate confirms the authority of the executor (person named in the will) to deal with the deceased’s estate. It is issued by the Probate Registry, which is part of the court service. The probate enables the executors to manage the assets such as property, personal possessions and money of the deceased. It is used to show that the executor has got right to access funds, manage the finances and collect the assets left by the testator.

When is it needed?

The grant is needed if the deceased left:

  • Stocks and/ or shares
  • Insurance policies
  • Property or land

It may not be necessary if:

  • The deceased left less than £5000.00
  • All of his or her possessions were owned jointly with someone else (they pass on automatically)

When is a caveat used?

A caveat gives the person who requested it an opportunity to enquire if there are grounds to oppose the application for grant of probate or bring a matter to court. The examples of circumstances when a caveat could be used are as follows:

  • There are allegations as to the will in question: that it is not the last will but an earlier version, that the testator was not of sound mind when making it (sound mind is one of the requirements for a will to be valid) or that it was not appropriately signed or witnessed etc.
  • There is a dispute as to the existence of the will
  • The person applying for the grant of probate is not entitled to do so
  • There are allegations that the person applying for the grant of probate is not fit to do so
  • There is a dispute between executors as to which one of them should apply for the grant of probate (sometimes a will names more than one executor and they are all entitled to apply for probate)

How do I apply for a caveat?

To enter a caveat you or your solicitor need to write a letter to any Probate Registry (or attend it in person) and pay a £20 fee to HM Courts and Tribunals Service. The letter needs to include the following information:

  • Your details: name and address to which you wish the caveat documents to be sent to
  • The deceased’s details: their full name, last permanent address and date of death as registered on the death certificate
  • A request for the caveat to be entered with your signature

Anyone with an address in England and Wales (it can be an address for service of documents if you do not live in England and Wales) can apply to enter a caveat. It has to be entered individually and you cannot apply for it with another person.

Terms of a caveat

A caveat should be applied for as soon as possible without waiting for someone to apply for a grant of probate. A caveat is valid for 6 months from the entry date and expires if it is not extended. It can be renewed within the month it is about to expire for a further 6 months, which incurs another fee of £20.00

A caveat can be cancelled at any time by writing to the Registry.

Next steps


If a caveat performs its function and prevents the grant of probate the person applying for probate will be given the details of the caveat and its owner. The parties should contact each other and try to resolve the dispute amongst themselves.

If no agreement

If the parties cannot agree, the person applying for a probate can issue a warning against the caveator to state his or her interest in the estate (the reason for entering a caveat). Failure to respond may result in your caveat being removed. If the caveator responds he or she enters an ’appearance’ which holds the caveat in place until the disputes are resolved by applying to start proceedings with the District Probate Registrar or the court.

LLP, limited company or partnership ?

Limited liability partnership provides benefits of both unlimited partnership and a limited company. The main objective is to preserve structural flexibility offered by partnerships and reduce the investment risk through the concept of limited liability. LLPs are particularly common in among professionals such as solicitors or accountants.

What are the differences between unlimited partnerships, limited liability companies and limited liability partnerships?

In the United Kingdom, limited liability partnerships are unique in that they operate very much in the same way as incorporated businesses. In other words, they are separate bodies and their existence is independent of the members. Therefore, if a partner in a limited liability partnership dies or walks out of the business, it does not affect the LLP’s existence. By comparison, in the case of unlimited partnership, the partnership would need to be dissolved and reformed as a new partnership without the leaving/deceased partner. Also, unlike in the case of unlimited partnerships, partners with limited liability are not responsible for other partners’ misconduct or negligence. Therefore, at no time the partners can lose more than their original investment. Limited liability partnership is similar to unlimited partnership in that the partners manage the business directly. This is different to limited liability companies in which shareholders own the business and delegate the management responsibilities to members’ elected board of directors. The board organises itself (also under the laws of the various state charters) and has the legal responsibility to manage the company in the best interest of its members.

What are the main tax advantages of limited liability partnership?

The main tax advantage over limited company is that each member is taxed separately by filing their own annual tax return. This avoids double taxation where profits are taxed with corporation tax and either income or dividend tax upon distribution to members and employees of the company. Aside of that limited liability partnerships attract a range of tax reliefs:

  • Capital Gains Tax – shares in limited liability partnerships are treated in the same way as in unlimited partnerships. Consequently, disposal of a partnership interest will entitle you to entrepreneurs’ relief through which you may be entitled to the lower 10% capital gains tax rate.
  • Inheritance Tax – since interest in partnership attracts the business property relief it can effectively be excluded from the value of the deceased’s estate. This applies only to property that is held in the name of limited liability partnership. Any property that is used by the partnership, but legally owned by the deceased attracts only 50% of the business property relief.
  • Interest Relief – investors who take loans to purchase shares in active limited liability partnership are entitled to interest relief. Therefore, you will be able to recover costs of the loan by claiming interest relief on your self-assessment tax return.

The above reliefs summarise main tax benefits of limited liability partnership. They apply to trading partnerships, as most reliefs are not available to partnerships that exist only for investment purposes.

Can I convert a limited liability company into limited liability partnership?

The Limited Liability Partnerships Act 2000 does not allow limited companies to convert into LLPs. The only way to start operating under limited liability partnership is to transfer your existing company’s goodwill such as name to newly incorporated LLP.

Should I establish a limited company or limited liability partnership?

Both limited liability partnerships and limited companies have their pros and cons. If your operation is likely to be small i.e. a one man business, it is likely that a limited company will offer you a cheap and quick solution. If on the other hand, you are planning on getting into a venture with a few business partners and rotations are likely to happen, limited liability partnership provides great exiting and entering strategies for partners. Finally, as your business progresses you can review your business plans and transfer the business over to a different form of legal entity.

Gross misconduct – the practicalities

Employment law, in many (but not all cases) comes down to 3 quite basic issues :-

1. what does the contract of employment say about a given situation, if anything ?

2. a common sense view on an issue which has arisen

3. from the employer’s perspective, complying with good and thorough procedure, including investigation, independent decision making and the right of appeal.

A common sense view on gross misconduct

The above 3 steps are paramount when looking a potential gross misconduct situation. Firstly, a good and well written contract of employment will provide examples of what might be gross misconduct, and there are some obvious examples, such as fighting in the workplace, theft, being intoxicated and so on.

But an employer should not necessarily worry if a particular situation is not covered by the contract, because there are a whole range of things which can constitute gross misconduct and the test that the employer needs to satisfy is that he, she or they dealt with the issue within “a range of reasonable responses” and this range can be quite wide. The common sense viewpoint is simply, does the employee’s action, looked at objectively, and if investigated sufficiently to give the employer an honest belief that the act or omission was that of the employee in question, go the heart of the contract ? Is it such a serious act that it destroys the employment relationship ? Employers who follow these common sense rules are unlikely to fall foul of unfair dismissal on the merits of dismissing.

In fact, more employers lose cases in the Tribunal because of failing to comply with either their own contractual disciplinary process or that of acceptable natural justice. No matter what the employee may have done, he or she must still be afforded the right to :-

1, a fair investigative process

2. to have forewarning of the allegations before any disciplinary hearing and sight of evidence generally

3. the right to be accompanied to a disciplinary hearing by a colleague or Trade Union representative

4. the chance to state his or her case

5. the right to be advised formally of the outcome

6. an opportunity to appeal the decision


In summary, common sense on what constitutes gross misconduct, consistency of approach, check the contract. As an employer, focus on process, again check the contract process and also look at the latest ACAS guidelines.



Legal fees – how to keep them down

Tips for minimising legal fees

Below are some brief, common sense ways in which it may be possible to reduce your legal fees. It is always difficult for small businesses to both understand and plan for legal fees which are generally unplanned for and which appear uncertain and very expensive on an hourly basis. However, whilst not solving the problem, if clients gain a better understanding of how and why lawyer’s fees are calculated, this of itself may help to save money, so these are our tips

  • Understand your lawyer’s charges – be aware that if your lawyer charges a rate of £200.00 per hour, this is not £200.00 profit – generally lawyers have a profit margin of 30% or less. In addition to the usual business expenses of premises and so forth, lawyers need a lot of admin, such as secretarial. But they also have to pay very expensive indemnity insurance which protects clients, so you are also paying for that extra layer of protection. Many lawyers also would like to be more flexible in the way they can charge but are constrained by professional rules which may not allow or make easy the prospect of ad hoc or limited retainer advice (see further below)
  • Do your research on your lawyer – not all solicitors are the same, the more experienced the solicitor is in your particular type of work, whilst the hourly rate may be higher, the efficiency may be much better. Put simply, if a lawyer has dealt with a lot of contracts like the one you need, he or she should be able to deal with the issues faster
  • A lot of lawyer time can be wasted on the process of back and forth communications with clients to obtain all necessary information and documents to advise or to satisfy the counterparty’s lawyers on a transactional matter such as buying or selling a property or a business. The more of this work the client does, the less lawyer time should be needed. Use your lawyer for advice, not for information gathering. Ask your lawyer for a list of relevant documents and information he or she will need at the outset and take the initiative in this respect. With some types of legal matters, particularly litigation, you will need to provide all relevant documents for your lawyer, whether those documents help or hinder your case. It is also generally important to prepare a good chronology for litigation cases, and again, you need to be thorough with this
  • Be clear on your objectives with your lawyer – if he or she doesn’t think these are achievable, whether they are expectations on legal costs, expectations of timescales, or expectations of results, for example with a litigation dispute, you should find out as soon as possible – this type of discussion also helps to flush out the good lawyers from the bad, this is advice based on the lawyer’s experience and it is that experience, just as much as legal knowledge that you are paying for.