Lasting Power of Attorney and why you need one
There seems to be more public awareness and media attention on the issue of importing and exporting to and from the UK in the wake of the Brexit decision. This article will briefly explain what the main legal requirements are so we can all hopefully get a better understanding, and if you’re a business owner looking to import or export, then these insights will be of great help to you.
The first thing to note is that the UK is currently a member of the EU Customs Union, meaning there are no import or export requirements between EU countries. The second feature of the Customs Union is that the same rules apply to EU countries when it comes to importing or exporting outside the European Union, also known as Third Countries for the purposes of European law. So an American exporter of corn will face exactly the same rules and requirements whether they’re exporting to the UK or to Finland. How all this will change after March 2019 of course remains to be seen, but this article to deal with the situation as it is now and will not speculate on potential future arrangements.
Exporting from the UK to a Third Country
The government is pushing hard in its public relations campaign to get British businesses exporting more. So how do you do it?
Firstly you will need to check if you need an export licence for the type of goods you wish to export. These are known as controlled goods and include as you would expect things like military equipment, chemicals, and pharmaceutical products. If you are a technology company, even if you’re in software development, you will need to check, and you will be surprised by how many items are controlled items. You can check at the Department for Business, Innovation and Skills website, where you can also find out how to apply for a licence.
Food and agricultural products have special controls and different sets of rules depending on the type of produce. So you will definitely have to consult the Department for Environment, Food and Rural Affairs’ website.
Once you have satisfied yourself of these controls and you are ready to export, you have to submit an electronic export declaration on the HMRC’s NES system. This is the point where you will also find out about any export tariffs. The declaration stage is a critical one and unless this is done correctly you will fall foul of the HMRC.
Two other important points to make in relation to exporting from the UK, is if you are transporting goods through other EU countries with the intention of permanently exporting them to a Third Country, this requires a special procedure and paperwork. Secondly if you’re exporting goods which you have purchased in the UK you can zero-rate your VAT, as long as it’s within 3 months.
The above covers the requirements from exporting from the UK, you will of course need to be keenly aware of the import requirements of the destination country. You are very likely going to require further procedure and possibly incur tariffs. Please do check with the relevant authorities in the destination country what the procedures would be.
Importing into the UK from a Third Country
Certain restrictions apply when importing specific products into the UK, such as plants, animals, food, medicines, textiles and chemicals. The requirements may also change depending on the country of origin of the product. The UK authority to check with depends on the goods themselves, so for example if you are importing food animals or plants the relevant government department to check with would be the Department for Environment, Food and Rural Affairs.
The Single Administrative Document, which in the UK is known as C88, is used for import declarations when trading with Third Countries. The form can be obtained from the gov.uk website along with clear and comprehensive guidance notes for its completion.
Import duty and VAT are payable as the goods enter the UK, which are calculated as the overall value of the goods as disclosed on the invoice plus freight and insurance costs. The VAT element is worked out from this combined total.
Remember to consult
This article is only intended to be the briefest of introductions into an area which can get very technical. If you are going to trade outside the EU remember to check both the relevant authorities in the UK and the country with which you are trading. Those authorities will vary depending on the nature of the goods, but in relation to the UK side of operations, the best places to start would be the HMRC, the Department for Business Skills and Innovation, and the UKTI.
Finally if you are dealing with controlled goods be extra careful, and it would be prudent to consult an expert lawyer as well as the relevant government agencies.
Written by Bruno Rodrigues. If the contents of this article interested you and you would like to discuss it or any other legal issue, then please do not hesitate to contact us using the details contained on this website.
You are an author! You have expressed your passion, your soul on paper. You wish to share your thoughts, ideas and the essence of your imagination with the rest of the world. You wish to delight and inspire others with the gifts of your intellectual prowess and soulful stirrings. You alone know the untold hours spent in expressing yourself and your efforts deserve to be given the best platform possible.
As an author, it is crucial to ensure that the spirit in which your work has been created is respected, protected and preserved. The purpose of your creative expression should be fulfilled.
In order to publish your work, you may decide to self-publish or you may seek the services of a good agent. Whether you are with an agent or alone in your journey, it is essential that you obtain sound legal advice on the publishing contracts which you become a party to. As lawyers, engaged in preparation of such contracts, we ensure that your interests, rights and entitlements are protected in the all important publishing agreement.
If you are contemplating the terms of a contract which have been presented by your publisher, some of the following issues should be foremost on your mind:
Copyright: Retain your copyright and moral rights over the work. Ensure that your publisher registers your copyright by the time your book is
published or at least within 3 months of publication.
Licence: The contract should identify what exactly is being licensed to the publisher. This includes different formats, territories, languages and volume of publication. All other rights should be expressly reserved to you.
Creative Control: You should retain creative control over your work and that means not allowing the publisher to alter your script without your express
Royalties: Be clear on royalty rates. Identify the kind of sale and what royalties apply. It is very easy to get cheated by virtue of the publisher’s offering of various ‘high discount’ or similar deals. Publishers also have a tendency to take back any advance paid out if royalties if they do not meet a set threshold. An astute way around this is to ensure the contract allows you to study the royalty records or the record of sales of your work.
Liability: Do not under any circumstances accept unlimited liability for libel or other such claims.
Duration: Ensure that you retain control over the publication of your work and if royalties fall below a certain threshold, the rights lapse
back to you.
Publication and Delivery: Identify the dates of publication, delivery, approximate sale price and obtain an undertaking from the publisher
to ensure this is followed.
We would be happy to assist you in negotiating for the most fruitful terms in the publication of your work. Aside from advising you on the essentials and nuances of your publishing agreement, we can negotiate on your behalf and ensure that your work is protected.
We would like to see that your book deal is prosperous and encourages you in the progression of your career as a magician with the written or spoken word.
Do get in touch!
That is the question. So how do you protect your brilliant idea that you’re certain will be a success in the marketplace. I am sure you’ve heard of patents and you may have heard that the applications can be lengthy and costly, so is it right for you?
A patent is a type of intellectual property law right which covers inventions, though the term can be broadly understood and it might be possible to patent a methodology or something else that is not a physical product. There are 4 main criteria and they are that the invention must be; novel, inventive, capable of industrial application, and not excluded from protection.
The best way to conceive of a patent is as a trade-off between you and the state. The state grants you a 20 year monopoly making you the only person capable of producing and selling your invention during those years, but your application is on a central register so anyone in the world can see how your patent works, and after the 20 year term is done they are entitled to copy and market it. However during those 20 years you really can make hay whilst the sun shines.
This trade-off is really the key to answering the question of whether you apply for a patent or not. If your idea is likely to be obsolete in 20 years time then a patent is a good idea. If it is likely your idea will last longer than 20 years you should consider other forms of protection. The classic example is
Coca-Cola, which opted to keep its unique formula secret for around 100 years under the common law of trade secrets, and strict confidentiality clauses in its contracts, rather than disclose it in a patent application. Had they obtained a patent it would have only lasted 20 years and undoubtedly the
Coca-Cola brand would not be the dominant global player it is today. If you’d like to learn a bit more about how you can protect your idea without the need for a patent then you can read my article by following this link http://www.cassadys.co.uk/b/can-i-protect-my-idea-...
Written by Bruno Rodrigues. If the contents of this article interested you and you’d like to discuss it or any other legal issue, then please don’t hesitate to contact us using the details on this website.
Often businesses overlook the fact that intellectual property is just that, property. As such it is an asset that has a tangible monetary value, and like physical property it can provide an income stream. So if you are a business and you have successfully applied for a trademark or patent, or have claimed copyright over original work, but have not gone beyond this or thought about how you can monetise your IP, then this article is for you.
Your intellectual property will have a certain monetary value in the market place, which should be reflected on your balance sheet. This will make your business more attractive to investors. Valuing your IP will also increase the value of your business should you wish to merge or sell. If you do not know how much your IP is valued at, then there are plenty of accountants you could speak to who specialise in providing market valuations of IP.
As an asset your IP could be used as security against commercial loans and other sources of financing. This could provide you with a much needed cash boost, particularly if you are young company or looking to grow your enterprise.
The most common way to monetise your IP is to licence it. This will provide you with a separate income stream and is a smart way to guarantee cash flow. This is particularly true in the creative industries in relation to copyright. In this case however it is important that you claim copyright, which exists in original work in the artistic, literary and musical fields, as well as in original non-artistic work such as software and web-content. Speak to a solicitor if you have questions over what can be copyrighted.
Your ability to engage in successful commercial relationships is dependent on the quality of your contracts. This is particularly true if you are looking to licence your intellectual property, as the terms under which this is done is key. Also consider issues such as do your employment contracts and service contracts adequately deal with IP ownership? And is IP ownership dealt with in
shareholder or director agreements? If not then it would be a good idea to have these issues addressed.
Written by Bruno Rodrigues. If the contents of this article interested you and you wish to discuss it or any other legal issue then please do not hesitate to contact us using the information contained on this website.
Taking the decision to become an entrepreneur can be one of the most exciting experiences any of us can do. You've thrown away the straight jacket of having a boss and you feel that rare feeling which you may even have forgotten, control over your time!
However very soon problems can come about unexpectedly that threaten your peace. The law in the UK tries to create a favourable environment for business people to succeed in, but there are common mistakes, and in this article I will explain the major pitfalls and how you can avoid them! This article was previously published with the fantastic and inspiring Secret Birds movement and you can visit their website here https://secretbirdshq.com/
• Contracts – and please don't be scared I don't mean the 20 page documents written in old style English. I have come across many entrepreneurs who agree work with the shake of a hand or over a short conversation. Whilst this is nice and friendly it does not protect you fully should things go wrong, like not being paid! It's always a good idea to put the terms of your work in writing for the other party to sign. If you're selling your time and services the necessary points to cover are your fees and when you expect to be paid (within 28 days is standard).
• The decision of whether to incorporate a private limited company or work as a sole trader or in partnership if working with others is an important one. Operating as a sole trader or in a partnership gives you more flexibility and less paperwork, but should your enterprise develop debts you would be personally responsible to cover them. Incorporating a company means you will have more paperwork and formalities to do, but because a company has a “separate legal personality” you as a shareholder or director would not be personally responsible for debts should the enterprise struggle or fail.
• These days everything is online and if you have a website especially for your business you will need to publish legal policies
• Connected to this and the first point, if your website sells good and services online you need a terms and conditions contract. This is also the case if you sell goods and services in the real world, but to comply with the Consumer Contract Regulations 2015 online terms and conditions contracts need to be different then real world terms and conditions.
• Intellectual property law deals with ownership of non-tangible property, which is a fancy way of saying ideas. If you are expressing an original idea (be it written, visual, audio or video) consider claiming copyright by including the c in a circle symbol plus the year. If your business has developed a unique brand and logo consider applying for a trademark preventing anyone else from using that unique brand.
I hope you enjoyed this article of the most common mistakes I see. Above all don't be afraid! Live out your plans but always keep in mind legal implications.
Written by Bruno Rodrigues. If the contents of this article interested you and you wish to discuss it or any other legal issue than please do not hesitate to contact us using the details contained on this website.
One of the recurring themes during the recent EU referendum campaign was that if Brexit did go ahead the City of London’s status as a premier global financial centre would be eroded. It is certainly true that the City is Europe’s financial capital, and more than that it has actually overtaken New York at least in terms of trading volumes. Following the leave result the French government have made announcements to the effect that whilst they are devastated with the election result they do see this as an opportunity for Paris to step up. I am sure the German government echoes those sentiments in the wider sense and also in relation to Frankfurt.
This article will set out a positive case that Brexit does not necessarily mean that London will lose its status. The article does this from a politically neutral viewpoint, in the sense that it is not an endorsement of the Brexit position, rather an attempt to understand the new reality.
Clearly there are real threats to London’s status. In part because the European single market is an international tariff-free marketplace and the UK’s place in the marketplace is now very much in doubt. However the danger consists of more than just a general doubt over Britain’s place in that market.
One of the dangers spoken of a lot over the last few days is London losing its ‘passporting’ status. In essence this gives the banks and financial institutions based in London the ability to operate freely throughout Europe whilst being based in London. Since the Brexit vote several politicians in Europe have suggested that were the UK to leave the single market British financial firms would lose this right.
Another danger is London no longer being a ‘Euro clearing’ centre. That is London banks no longer clearing transactions in Euros, and those transactions moving to the continent or the Irish Republic instead.
The third danger relates to banks and financial institutions moving jobs away from the City to parts of Europe still in the EU.
The threats can be solved
Following the credit crunch and the global financial crises the EU embarked on an ambitious regulatory regime at the EU level in order to harmonise financial regulation and compliance. This project will culminate with what’s called MiFID II coming into effect on the 1 January 2018. The rules are very technical, however the important thing here is MiFID II states third countries (non EU countries as the UK will be) which have financial regulatory regimes equivalent to MiFID II will be able to operate in financial services throughout the EU.
So in effect London can still be ‘passported’ in financial services, just so long as the UK government introduces laws which are equivalent to MiFID II.
Such a technicality cannot save London on the ‘Euro clearing’ issue, however such is the City of London’s near monopoly of European financial services, the UK government has a great deal of leverage when it comes to negotiating this and other aspects of the financial services exit terms. In short the capital for the rest of Europe is raised in London and all of Europe’s financial industry is so tightly inter-twinned that Britain has a strong negotiating hand.
On the issue of job relocations, following the UK’s exit from the European Exchange Rate Mechanism in 1992 many financial institutions did relocate jobs away from London to Frankfurt and Paris. However within a few years those jobs where back, because those cities simply cannot match London’s infrastructure for financial services. One of the reasons why London has become such the global centre it is is because of the chancery courts and commercial law being so much more developed here than elsewhere. Finally English is the international language of commerce and trade, which is to London’s benefit when considering a challenge to its status from Paris or Frankfurt.
During the Chinese State visit to the UK in October 2015 it was announced that the Chinese central bank would issue RMB sovereign bonds in London. This was a watershed moment because never before had the People’s Republic of China issued RMB sovereign bonds outside of China before. It shows a clear intention on the Chinese government’s part to use London as its foreign markets base.
I would expect the UK to announce similar partnerships with other major emerging markets such as India and Brazil over the next few years, making London even more of a global financial centre.
Though the dangers to the City of London’s status are big and there still might be a short term hit to London’s fortunes, there is clearly a path for the City to retain its global status and indeed to enhance it.
If you wish to discuss any issue raised in this article, don’t forget to contact us using the Contact Form or by calling 020 3772 5439.
Unfortunately it is not uncommon for trademark applications to be refused. In this article we will explore how an application can be refused, which is the negative way of expressing the question how can I make a successful application? This article will explore the application criteria from the negative proposition as this is often the best way to understand a process.
The examination stage
The Intellectual Property Office (IPO) has the remit of examining trademark applications in the UK. After an application has been filed the IPO will check whether any absolute or relative grounds exist for refusing registration. Absolute grounds are reasons which are inherent in the mark itself. Relative grounds relate to the existence of prior rights, whether registered as a trade mark or not.
Absolute grounds for refusal
An application may be refused because of some inherent defect in the mark such as:
· It is devoid of distinctive character;
· It is merely descriptive of the good or services
or some characteristic of them;
· It is generic;
· It cannot be represented graphically;
· It cannot be distinguished from the goods or
services of other undertakings.
Objections on the first three bullet points above can be overcome by showing acquired distinctiveness or a secondary meaning. However in respect of marks which are found to be merely descriptive the IPO will require several years’ use to meet the registration criteria. In relation to the last two bullet points above, an objection to the IPO’s refusal would be very difficult if not almost impossible to sustain.
Relative grounds for refusal
An application may be refused if there is a conflict between the mark and an earlier right. The following may be
relative grounds for refusal:
· Identical mark already registered for the same
· Identical or similar mark already registered for
similar or identical goods, and likelihood of confusion;
· Identical or similar mark already registered for
any goods, similar or not, where the earlier mark has a reputation, and the
later mark without due cause takes unfair advantage of or is otherwise
detrimental to reputation;
· Protection granted under common law, for example
copyright and design right.
We hope you found this article useful. If you wish to discuss this or any other legal issue than please do not hesitate to contact us using the details contained on this website. Written by Bruno Rodrigues.
Taking on a commercial lease is a big step up for a business as well as a psychological boost, particularly if it has been renting premises before under a tenancy. Some businesses get carried away with this first lease excitement and fail to examine the detail and suffer consequences later. In fact commercial leases can be such complicated affairs that even long-lasting businesses with strong experience can get caught out. That’s why it is essential when taking out a commercial lease that you seek specialist advice. This is particularly so as many leases are pro-landlord.
This article will address a few of the more common questions. However leasehold is a complex and technical area of law, so this article only covers the most basic points. If you are in the process of obtaining a lease you should take specialist advice
What if I don’t need the premises anymore?
It is not often the case that you can terminate you lease simply because you no longer require the premises. Most people fall into the trap of assuming a lease is like a tenancy, when it is actually an interest in property albeit over a limited period of time. A lease is for a set term so even of you vacate the property you remain liable for it.
You do have options however. You could for example assign your lease to a new party though any such assignment would have to be done within the provisions of your lease and it would be strongly advisable to seek legal advice in relation to an assignment. You could also surrender your lease back to the landlord, however that often requires at least some negotiation with the landlord. Finally if at the outset you are unsure about whether you could meet the full-term of the lease, perhaps you should negotiate break clauses.
Who is responsible for repairs?
Most commercial landlords not only seek to avoid responsibility for repairs and maintenance, but will actually squarely put that responsibility on the tenant, contractually speaking. A well advised tenant will try to limit the repairing and maintenance clauses. Furthermore a well-prepared in-going tenant will conduct a full survey of the property and its condition before moving in, in order to protect themselves.
What if the landlord breaches its conditions?
As a lease is a contractual relationship your remedy would most likely be damages. This would necessitate a Court application and the Court will look to compensate the party back to the position it would have been but for the loss.
Will my rent stay the same?
A typical commercial lease term will range from 3 years to 25 years and the lease itself will stipulate when and how rent reviews will be conducted. During the negotiation phase it is important that you negotiate these provisions as pro-your position as possible. Furthermore, unlike in residential leasehold, there are no strict legal safeguards against landlords raising service charge by unreasonable amounts. When it comes to commercial leasehold and service charge the law pretty much leaves it as a contractual term for the parties to negotiate. As a tenant you should negotiate service charge reviews into the lease but that won’t suffice. Provisions also need to be included stipulating how the service charge is to be calculated, that service charge accounts should be transparent, as well as a dispute resolution mechanism specifically for the issue of service charge increases. This is necessary because if the lease is minimal on detail, some landlords will take advantage of that that issue increases out of the blue and at unreasonable rates.
So I hope you found this brief introduction to leasehold interesting and useful. If you wish to discuss this or any other legal issue then please do not hesitate to contact us. Written by Bruno Rodrigues.
Businesses thrive on new ideas. There are some enterprises whose sole aim is to develop new ideas. Given the competitive nature of business it’s only human nature once and new ideas been formed and developed starts to worry about your competitors getting their first stealing your bright idea. Everybody has heard about patents and they are a wonderfully useful tool given that they are the type of intellectual property specifically designed for inventions. However many people are put off applying for a patent. Firstly because if granted your invention will be on the patent register for the whole world to see. Secondly the whole process can take years and be costly.
If these reasons do put you off there are other ways you can protect your business idea.
You will inevitably deal with suppliers, manufacturers, distributors and others when you take the fruits of your idea to the marketplace. Have anyone you work with sign a non-disclosure agreement which binds all parties to keep sensitive information confidential. As it is a contract should the other party break it you would be entitled to seek damages for breach of contract.
If you employ somebody to work with you on sensitive information make sure there is not only a confidentiality clause in their contract, but also a non-compete clause.
Apply for a trademark
Patents protect inventions and trademarks protect signs, names and brands, however protecting your product brand using a trademark does provide ownership. If the brand becomes particularly successful then the product/invention it sells becomes synonymous with you which can only be a good thing.
If you work contains original graphic, artistic or literary material you should certainly claim copyright over it.
This is a separate field of intellectual property law and one a later blog article will deal with in depth. There is some crossover between patents and design rights and if you do wish to avoid going down the patent fruit it might be that the protection of design rights offers you is more appropriate.
Lastly though this article deals with alternatives to patents, often obtaining one can be the best course of action. It very much depends on the case-by-case basis.
Written by Bruno Rodrigues. If the contents of this article interested you and you wish to discuss it or any other issue, please do not hesitate to contact us.
The European wide trade mark regime is an aspect of the EU single market which many UK business owners will be familiar with. Intellectual Property law and its rapid development and increasing importance over the last few decades can be seen as an example of the effects of a European-wide single policy. The referendum on the UK’s continued membership of the EU is now eight days away, so how would a potential Brexit, and the opinion polls are very close, impact your current trade mark and your business’ IP past, present and future?
European trademark regime
The EU TM is only available to EU member states, therefore on Brexit an EU TM would not be available to UK businesses. There would probably be transitional arrangements covering various years to allow holders to convert their EU TMs into UK TMs. Existing EU TMs held by UK businesses would still be effective in other member states up until their respective renewal dates, with renewal almost certainly barred. If you have an EU TM but your operations are more or less limited to the UK only, then your mark would probably be vulnerable to revocation in other member states on non-use grounds.
On Brexit the Courts in England & Wales, Scotland, and Northern Ireland would no longer have to interpret domestic law in line with EU-wide law and British Judges would be able to depart from European law. This however could be a double-edged sword as there are examples of EU law providing a positive development to UK IP rights, and vice-versa.
Cross-jurisdictional litigation and costs
A potential Brexit would almost certainly lead to an increase in the amount of money spent by British companies enforcing their IP rights. This is because EU-wide infringement proceedings, as well as EU-wide injunctions preventing infringement will no longer be possible. So if there is a competitor company operating in Spain, Germany, Italy and France, a British company would have to file proceedings and injunctive relief in all four countries. The same of course applies to any new trade mark, or the same trade mark once the EU TM reaches its renewal date: it would have to be filed in all respective EU countries that the UK company wishes to operate in.
In the above example four is probably an unrealistic hypothetical, as the remaining EU countries would of course still operate as a single-market, so any competitor company is more than likely to operate in more than four jurisdictions. Therefore it is conceivably possible that a UK company would have to file 27 separate trade mark applications, one in each EU member state.
There will be practical implications to British trade marks on a potential Brexit. Should the UK withdraw from the EU British firms would be well advised to apply to convert their EU-wide marks into UK marks as soon as possible. Should Brexit not happen, it will remain prudent for firms to hold both UK and EU-wide marks.
Written by Bruno Rodrigues. If the contents of this article interested you and you wish to discuss it or any other legal issue, then please do not hesitate to contact us.
The issue of data protection is one that often has many businesses and organisations spinning with concern. Whilst it is true that the law places certain requirements and with upcoming changes potentially large fines for breaches, it is however an area of regulation which is fairly straightforward and with good policies, practices and planning, the potential for risk can be managed.
What can you do?
The © symbol is seen almost everywhere particularly next to famous names. But what is copyright and how can it protect your business?
Copyright protects your originally created work and prevents others from using it without your permission. Your right to copyright material exists automatically, you do not need to apply for it as you would apply for a trade mark. The UK legislation defines copyright as pertaining to; original literary, dramatic, musical or artistic (including photographic) work. The Courts have ruled that it also applies to; software and web-content, music recordings, film and TV, and the layout of published artistic work such as musical score or a screenplay.
An extensive right
The right is therefore an extensive one, although the legislative list and judicial interpretation are exhaustive. This means that if you create something which is not recognised by law as being capable of copyright, it cannot be copyrighted, unless you get a Court ruling in your favour of course.
Nevertheless it is an extensive right and a highly useful one. It protects people from copying or distributing your work without your permission. This includes preventing anyone from using
your material on the internet, renting or lending it, performing your work, and even adapting your work.
How to protect your work
It is advisable to mark your creation with the © or you can write copyright and also adding the year is good practice. However using the symbol does not create the right as it exists automatically, it does however notify the market that the material is subject to copyright protection.
You can market your copyrighted material by licensing it out to others who wish to use it. It would be very wise to have a licence agreement in place fully setting out the nature of the relationship, rather than relying on a verbal agreement.
Protecting your copyright is your responsibility. This will usually mean being attentive to what is out there in the market. You should contact a lawyer for taking any action if you do spot any use which you believe is an infringement, as the appropriate course of action will depend on a case by case basis.
Written by Bruno Rodrigues. If this article interested you and you wish to discuss it or any other legal issue then please do not hesitate to contact us by using the Contact Us form or the details contained on this site.
So the United Kingdom has voted to leave the European Union. Talk of it being seismic is no exaggeration, it is the biggest political event of our lifetimes and probably the biggest historical event in Europe since the end of the Cold War. In the build-up to the vote the big banks in the City of London spent millions on contingency plans, which are already in effect, for example on Friday JP Morgan announced 2,000 jobs will be moved from London to Dublin and Frankfurt. Whether this is the start of a trickle or an exodus remains to be seen, though I am sure HM Treasury is working hard right now devising policies and plans to make sure big businesses and banks remain in London and the wider UK. But what about small and medium sized businesses?
No change, at least for now
As David Cameron stressed in his resignation announcement nothing changes in the short-term. This is because the period to negotiate the exit terms will last around two years, during which time the UK remains a full member of the EU.
There will be change
The immediate no-change will eventually give way to a new business and regulatory environment. How much change there will be depends on the exit terms. One model would be for the UK to remain part of the European Economic Area with full access to the single-market without being a member of the political union. Another option would be for the UK to have a free-trade agreement with the EU which would either be completely tariff-free or include some tariffs.
The financial markets and the wider economy do not take well to uncertainty, so expect the immediate economic outlook to include volatility. Having said that, there are certain things small and medium sized businesses can do, both financial and legal, to help guide them through these uncertain times.
· Review your business plan. Perhaps now you need new priorities? Or perhaps given the uncertain times you may think it careful to review your current financial commitments to shore up your balance sheet.· Conversely now might be the time to bring forward planned investments, for example in hiring skilled labour from the EU before visa requirements are introduced, or capital expenditure on EU made equipment.
· You should consider whether the new world we find ourselves in poses any advantages to your business. This may involve some creative thinking.
· If you are not already a member of the CBI or a trade organisation, join. They provide handy seminars and literature for their members.
· Keep following the news. As I indicated above it is highly likely the UK government will introduce many pro-business reforms in order to prevent a recession and reassure the markets. These could include tax cuts, tax reliefs, and simplification of many rules.
· Similarly stay in regular contact with your accountant because there will be many fiscal changes over the next few years.
· Stay in regular contact with your lawyer to keep-a-breast of the changes, and as the changes take legal affect, regularly review your agreements, HR policies and business requirements with your lawyer.As the author Napoleon Hill once observed “every adversity contains within it a seed of an equivalent or greater benefit.” The Brexit world is a more uncertain one, the businesses that survive and thrive in the new environment will be the ones that operate flexibly and creatively.
Written by Bruno Rodrigues in July 2016. If you wish to discuss this article or any other legal issue please do not hesitate to contact us using the Contact Form on this website or from the details contained in this site
Can a written contract be later amended by verbal agreement? The question is important because most business to business written contracts contain a clause that the contract or part of it can only be varied (changed) by further written agreement, and most written contracts go on to stipulate how and what form the further written agreement must take.
However those of you win business will know that the real world does not work like that. Often you change the terms of trade with your suppliers, business associates, customers, on a case-by-case basis as and when the need arises, and often do so with a simple verbal agreement. This is a case not only because this is how the real world works, but also because many people forget about the written variation clauses contained in their contracts.
But are such changes legally binding? This only becomes a relevant question if the dispute has arisen and the standard advice used to be turn to the contract to see what it says. However in April 2016 the Court of Appeal in the case Globe Motors versus TRW Lucas Varity Electric Steering Limited found that parties to a contract have freedom to agree what they want. Including changes to a current contract even if on the face of it variation requires written consent. In short an existing contract can be varied verbally.
An example of the courts trying to reflect real life which must always be applauded. However it is not the death of written variation clauses. It is still advisable to include these as having one would make it more difficult for the other party to rely on verbal variation. Naturally a lot depends on the nature of the contract itself. For example if it is a high value contract relating to a complex transaction it is still best practice and indeed common sense to require that all amendments be in writing. However if the contract relates to a non-complex transaction and is not of a particularly high value it is more likely than not that a culture will develop whereby variations tend to be verbal, which are now course legally binding.
Written by Bruno Rodrigues. If the contents of this article interested you and you wish to discuss it or any other legal matter please do not hesitate to contact us using the contact form on this webpage or using the details contained on this site.
In the context of contract law the concept of good faith is a presumption that the parties to a contract will deal with each other honestly, fairly, and in good faith, so as not to destroy the right of the
other party to the benefit of the contract. Many legal jurisdictions notably in continental Europe have legislative provisions stating that the concept of good faith will apply in all commercial dealings. However the law in England has always been reluctant to place such a responsibility on parties to commercial dealings. This article will examine to what extent this is changing and what you in your business dealings can do if you want your contractual relationships to be carried out in good faith.
The English courts have always been reluctant to impose a general duty of good faith because of their concerns that doing so would undermine contractual certainty. Furthermore the courts were also reluctant to interfere in the business decisions and dealings independent individuals and businesses make. In a famous 2013 case the High Court set out a number of factors which would need to exist for the courts to rule that a general principle exists that parties must act in good faith. However the Court of Appeal in a recent case rolled back on that and reasserted the historic position that English contract law does not recognise a general duty to act in good faith.
Therefore if you want your commercial dealings to be carried out in good faith you must explicitly say this in the contracts that you enter into. Further the courts generally interpret that such express provisions only relate to the actual performance of the particular obligation in the clause in question. Therefore if you want the principle of good faith to apply to more than one obligation in the contract it must be stated in each obligation that you want to apply to. However it is possible for the courts to rule that certain express provisions to act in good faith apply elsewhere in the contract, however that is a technical point outside the scope of this brief article. To afford you the best possible protection the safest option is to explicitly provide for good faith in each and every obligation you wish it to apply to.
Clarity here is key and what you mean by good faith should be explained in the actual provision itself. It is also very important to be aware that express provisions for good faith will not trump an absolute contractual right. In this regard English law is still very different from European civil law, which is both a good and a bad thing: no general principle of good faith means you cannot presume the other party will act honestly and fairly, but also gives you flexibility, and it is this flexibility that English law has sought to protect by not developing a general principle of good faith.
Written by Bruno Rodrigues. If the contents of this article have interested you and you wish to discuss this or any other matter please do not hesitate to contact us using the details on this website.
The advent of the Internet has changed the way we shop. In simpler times customers had personal relationships with their grocer and their tailor, and even as recent as 20 years ago most of us went to a travel agent to book holidays or to buy our flights. Now everything is literally a click of a button away. In the UK e-commerce grows at a staggering 18% a year, a trend which is forecast to continue for the foreseeable future.
Who honestly reads the terms and conditions contracts that we so readily agree to when buying our favourite products online? Well, lawyers certainly do, but as anecdotal evidence not many others. In fact it is a habit of the typical online consumer to check the little boxes before clicking buy and not give it any afterthought at all. It would be tempting therefore for many businesses to give the same degree of thought to the terms and conditions contract. However that would be a great mistake.
Terms and conditions are all about protecting your business. You need to cover yourself so that customers and clients have no opportunity to go back on their word. They also serve the wider purpose of making it clear to both parties what their duties, rights and responsibilities are. Well drafted terms and conditions should be prescriptive rather than vague and set out what happens when things go wrong. In this regard they save a lot of time, effort, and money by dealing with issues at the start of the relationship, rather than at court once things have gone wrong.
One size does not fit all
One common mistake practitioners in this field of law see often is the one size fits all approach some businesses take when it comes to drafting their terms and conditions. A general template downloaded from the Internet or worse, the doctored terms of your competitors will never suit your business’s individual needs adequately. In short each case is radically different from the next.
When preparing a terms and conditions contract for a client a lawyer will always have the three following words in mind: liability, liability, and liability! This is because of the highly litigious times in which we live, and even more so when the product or service in question touches on customers’ health and safety. When it comes to considering liability you must always think the unthinkable as well as highly unusual circumstances. It is when dealing with the issue of liability that a lawyer’s expert guidance is needed the most.
If you wish to discuss how a well drafted terms and conditions contract can protect your business then do not hesitate to contact us using the details on this website and we would be happy to
On Friday 28 October 2016 the Employment Tribunal issued a judgement which was well reported in the media as having wide ranging implications for self-employed people throughout the country. This article will examine whether those implications really are as far reaching as the press have suggested by examining how the Tribunal decided the case.
Uber allows customers to book a taxi service through a mobile app. It has been very successful because it has undercut its competitors on price and has been able to do so because its drivers are self-employed contractors rather than full employees. Nineteen drivers took the company to Court arguing that they are entitled to workers’ rights such as the national minimum wage, statutory holiday and sick pay, pension contributions, and the right not to have deductions made from their pay.
What makes the situation a little more complex is the fact that the law recognises three broad categories; the employed, workers, and the self-employed. Only the first two are entitled to full workers rights as highlighted above. Employees are the easiest to indentify, they are individuals who work under an employment contract. The second category of worker is broader and a bit harder to define but in essence includes any individual who undertakes work under an employment contract or any other type of contract where there is an element of control between the “employer” and the person performing the work. These include agency workers and short term casual workers, and to repeat because it is important, workers are entitled to the core employment rights and protections.
Self-employed persons are in business in their own right and are contracted to provide services on a case by case basis or over a period of time for an agreed fee. Self-employed people are in full control over what business they accept and take on and in control of their time management.
The key legal point here is control. Employees and workers are under someone else’s control (the law used to use the master and servant analogy to explain the issue of control) and are therefore
entitled to full workers right and privileges. Self-employed people are their own masters and are not therefore entitled to workers rights.
How the case was decided
With little surprise control was the key issue in the Tribunal’s decision. There were a number of factors that lead the Tribunal to conclude that Uber drivers are controlled by the company and are therefore not self-employed. These include; the fact that if drivers refuse three jobs they will be blocked from the service for a period of time, the fact Uber interviews and recruits the drivers, the fact Uber controls key passenger information (such as surnames and contact details) and excludes the driver from it, the fact the drivers cannot agree a higher sum of money than that calculated by Uber, the fact that Uber subjects the drivers to a rating system which amounts to a performance management/disciplinary system, and finally the fact that Uber accepts risk of loss which is the drivers were truly self-employed would be on them.
The Hyperbole and the real situation
Being a lawyer (and therefore perhaps a natural pedant) I was confounded at the media’s portrayal of this case as having far reaching implications for self-employed people. This is because if you are really self-employed, that is you control what work you accept and set the terms, this case does not affect you. This case does have implications for those who are currently classed as self-employed but are actually carrying on services under the control of a company, as Uber was found to be doing.
As a final piece of commentary I would imagine Uber will appeal this decision and indeed given that the number of self-employed people is growing this will not be the last such case brought to the Courts. The law in this area will keep on being aware of these issues.
If this article interested you and you would like to discuss it or any other legal issue, then please do not hesitate to contact us using the contact details on this website.
EU data protection laws are going through their biggest change in two decades. The question is where will Brexit fit in with this change? The General Data Protection Regulation (GDPR) was adopted by the European Parliament in April 2016 and will be directly applicable throughout the EU, meaning that national parliaments do not need to implement domestic legislation to enact the new law. The GDPR comes into full effect from 25 May 2018 onwards, being a date on which the UK is still likely to be a full member of the EU according to the government’s current timetable. Indeed in the UK the GDPR will mostly replace the Data Protection Act 1998.
What does the new regulation say?
Firstly it tightens up the law around security breaches so as soon as the data controller becomes aware that a breach has occurred it should without undue delay, and not later than 72 hours, notify the Information Commissioner’s Office (ICO). Secondly it provides further clarification on the issue of personal consent so if the data controller relies on the consent of the data subject they must be able to show that the consent was freely given, specific, informed and unambiguous for each stated purpose that the data is being processed for. Thirdly it creates the new post of Data Protection Officer to comply with, which is in addition to the current concepts of a data controller and data processor. Finally and perhaps most radically, the GDPR introduces the right to be forgotten, which means that data subjects be able to request that their data is deleted by the data controller.
Therefore the changes are wholesale, indeed not only are the rules tightened up but the penalties for breaches are also increased. Security breaches will attract a fine which could be as high as 4% of the data controller’s global annual turnover, and further the new regulation introduces an updated right for data subjects to seek compensation and damages for data breaches. The right to damages exists separately and is not mutually exclusive to the authorities’ legal rights to impose fines.
What about Brexit?
As stated above the UK is very probably likely to still be a full member in May 2018 when the new regulation fully comes into force across the EU. Furthermore according to the government’s proposed Great Repeal Bill, all EU laws in force on the date of the UK’s final exit will remain on British statute books. Therefore the GDPR will be the new legal framework on data
protection in the United Kingdom. It is strongly advisable for all data controllers in the UK to use the period of time until May 2018 to become fully
compliant with the new regulation not least given the increased financial implications for non-compliance.
Written by Bruno Rodrigues. If the contents of this article interested you and you wish to discuss this or any other matter further please do contact us using the details contained on this webpage
We all make use of open Wifi, and sometimes extravagantly so. Though a recent case from the Court of Justice of the European Union will make you think twice, particularly if you run an open
Wifi network. The case is called McFadden v Sony Music (C-484/14). Mr McFadden provided free Wifi at his shop as a way of enticing more customers to his premises. Someone however used his open Wifi network to make music that is the copyright ownership of Sony, freely available. Sony managed to trace the infringement back to Mr McFadden’s network and commenced legal proceedings.
The European Court found that Mr McFadden had been a conduit for copyright infringement. Further the Court found that the provision of free Wifi even though it is not-for-profit is an E-commerce activity, and therefore such providers have to comply with the E-commerce Directive which of course places certain legal obligations. The Court also ruled that for the provision of free Wifi to meet legal standards the networks should be password protected. This is rather counter intuitive as one would imagine free Wifi should be as easy to use as possible.
Written by Bruno Rodrigues. If this article interested you and you wish to discuss it or any other legal issue then please do not hesitate to contact us.
Trademarks are an increasingly common part of day to day commercial activity, so common indeed that many businesses routinely apply for them without fully understanding what rights it grants, and the full scope of the protection. This article will focus on the legal nature of a trademark and later articles will explain the applications process and the consideration criteria.
A legitimate monopoly
The clearest way to think of a trademark is as a state granted monopoly on the use of a distinctive sign that gives consumers valuable information. The policy justification from the state’s point of view is to protect consumers from misleading or false descriptions about the origin of the goods or services which they buy. The exact same exclusive right cannot be granted to two different people, and in the UK the Intellectual Property Office (IPO) is the statutory body which considers applications, resolves conflict between owners and applicants, and maintains the trademark registry. UK businesses also have the choice of registering an EU wide trademark with the Office for Harmonisation in the Internal Market, which is particularly useful if you are operating in other European markets.
What constitutes a trademark?
The Trademark Act 1994 states a trademark is any sign which is
• capable of being represented graphically and
• capable of distinguishing goods or services of one undertaking from those of others.
In essence this means anything that is capable of distinguishing may be registered as long as it can be represented graphically. This can include words, logos, combinations of the two, names, shapes of goods, as well as tunes and gestures. Marks which are descriptive or generic will not be registered for lack of distinguishability.
The Act further stipulates that the mark must be in use or the applicant must have a bona fide intention to use it, making challenges of unused marks theoretically possible. The state is saying you can have a monopoly, but only if you use it or have an intention to, otherwise you are denying access to the market of another person who does have the intention and thus hindering trade.
A monopoly is however a monopoly and provided that your granted trademark is used the exact same mark should not be granted, and you can object to similar marks in which case it would be for the other applicant to evidence how their mark is distinguished from yours. It is this exclusivity that gives trademarks their commercial value: it gives the owner a unique position in the market place. Finally a trademark is a property right and you must protect it as if you were protecting your land.
If this interested you and you would like a confidential discussion on Trademarks please do contact us and we would be happy to assist.