The High Court has now granted that order. Virgin Media, Sky, Everything Everywhere, O2 and TalkTalk have been ordered by the High Court to put measures in place that prevent their respective users accessing The Pirate Bay. ISPs have criticised the move as a part-solution only to the increasing problem of copyright infringement.

At any one time, 30-40 medicines are in short supply, and this includes treatments for some cancers, depression and Parkinson’s disease.  The Group has called on the Government to “up its game” and do more to tackle the issue.  The British Association of Pharmaceutical Wholesalers, which represents the nine biggest businesses, supplying 85% of the UK medicines, says that just a few of the 1,700 licence holders are responsible.

The Patients Association has called on the Government to urgently investigate the problem. 

The APPG report contemplated whether the Government could consider issuing legal restrictions on the export of medicines on grounds of protecting public health.

Meanwhile, pharmacists have also suffered, as they have had to incur extra costs in sourcing medicines.  The Government has already paid them £12m a year because of that. Some believe that is nowhere near enough to compensate for the problem, and the real issue is for patients.

Amongst the specific recommendations made by the report are:

• The Government must unequivocally state that the interests of UK patients must come above everything – not provisions concerned with free movement of goods.
• Quota arrangements must be less burdensome for pharmacists and more transparent.
• Wholesalers should increase buffer stock.
• The Government should consider specific legislation.
• Pharmacists should remember the General Pharmaceutical Council’s guidelines always to put patients first.
• There needs to be much better market information.   Market-wide information should be collected and analysed over the next six months.
• The Department of Health should update the APPG in six months with details of its progress.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “It is interesting that this report is looking to address the issue by stopping wholesalers from exporting (except if that does not harm patients).  However, equally, the suppliers could often manufacture more if they want to, but they need to protect their distributors in other countries.  The most important thing is that patients must not be adversely affected and made to suffer when enough medicine could reach them, and I applaud the Group’s clear message on that.  We are very much looking forward to the seminar we are holding on this important issue on 25 June and to hear what Kevin Barron MP will tell the audience.”

In West African Gas Pipeline Co Limited, the Defendant was awarded £135,000 wasted costs as a result of the Claimant’s e-disclosure failures.

Mr Justice Ramsey found that there were a number of errors and deficiencies in the way that the claimant and its advisors had carried out the whole e-disclosure exercise, which had ultimately led to increasing costs in the overall litigation and resulted in duplication of time in the carrying out of the actual exercise.  The Judge found the Claimant’s behaviour throughout the whole e-disclosure exercise to have been “wholly inadequate”.

The Judge was particularly critical of the third party e-disclosure specialist to whom the job was oursourced. He decided that the specialist had: 

• Failed to properly review documents provided for disclosure;
• Failed to properly assemble relevant documents; 
• Failed to properly de-duplicate documents provided on disclosure;
• Not dealt with redactions satisfactorily;
• Not identified and preserved appropriate documents later identified as disclosable;
• Not provided appropriate searchable fields within the database.

The judgment is a stark illustration of the high threshold now expected by the courts on e-disclosure and sets out all too clearly the punitive powers of the court against those who fall below the required standard.

One word of comfort for those who were nevertheless surprised at a costs order of £135,000; the claim in this case was for some US$ 273,748,113 although a settlement agreement was reached on 29 March 2012.

The ICO has agreed not to issue the Health Board with an enforcement notice, as the Health Board has instead agreed to written undertakings to ensure that all staff including clinical staff are made aware of their data protection policies and receive sufficient training. The Board agreed to take other steps, including processes to confirm patient identity before sending out correspondence.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “These are the dramatic effects being felt in just one drug falling out of patent during the so-called patent cliff.  The patent cliff is the period between 2011 and 2016 when many of big pharma’s blockbuster drugs fall out of patent without sufficient replacements in the pipeline to make up the revenue shortfall. This period is going to re-shape the whole pharmaceutical industry. It is a time of threat to big pharma companies but also a time of opportunity for new business models.”

This is good news for residential property owners.

Section 144 of the Act creates a new criminal offence of squatting in a residential building. Under the Act, a squatting offence will be deemed to have been committed if a person does all of the following:

1. Is in a residential building as a trespasser, having entered it as a trespasser;

2. Knows or ought to know that he or she is a trespasser; and

3. Is living in the building or intends to live there for any period of time

Although section 144 has not yet come into force (and no definite date has been given at the time of writing), if a person enters a residential building as a trespasser before or after the section’s enforcement, that person will have committed an offence under the Act. Offenders face up to one year in prison and/or a fine of up to £5000.  Some further background information is here.

There are a number of exceptions to this new offence, where an offence will not have been committed – for example, when a legitimate tenant or occupier who has occupied a property with permission refuses to leave following a disagreement with the landlord.

Importantly, the Act does not extend to commercial properties, so commercial property owners will have to continue to evict squatters through the civil possession procedure.

The Act is expected to come into force in September 2012, but we are awaiting confirmation.

Meanwhile, AZ’s chief executive, David Brennan, is retiring on 1 June  as the big pharma company battles to maintain revenues after losing out to generics competitors. Brennan said that the pharma sector was “experiencing pressures none of which I’ve witnessed in my 36 years in the industry”. Like many big pharma companies, AZ is feeling the effects of the patent cliff, which is the falling out of patent of many of their blockbuster drugs between 2011 and 2016 without sufficient replacements coming through.

Lipitor is one of the first drugs to come off patent in what is coined the “patent cliff”. The patent cliff refers to the falling out of patent of a large number of blockbuster drugs between 2011 and 2016 without sufficient replacements coming through in the pipeline. 

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “Many experts see the patent cliff as heralding a new era in the pharmaceutical sector as big pharma companies will struggle to cope with the massive loss of revenues that they will suffer. How they and others in the sector adapt to the new position will determine who will survive, who will thrive and who will not make it.”

Claire Ward, CEO of the IPF, says, “It is unacceptable that patients’ health and lives are being put at risk by this failure in the supply chain. Pharmacists are sometimes wrongly getting the blame when the fault lies in other places.”

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, says: “This is a massive issue. It needs sorting. Anything that Parliament can do to address it is crucial. People’s lives are being put at risk, with at least one reported death arising out of the supply chain problems. Whether the issue is with too many drugs being exported to take advantage of commercial opportunities arising out of differential prices in different countries, or suppliers withholding supplies so that they can sell more in other countries at a higher rate, a solution is needed to protect patients’ interests. The All Party Pharmacy Group at Parliament has recently held an enquiry into the issue, and we look forward to their findings in June.”

GSK said that the system for approving new drugs had to change.  It said: “ ”The failure to recognise and adopt innovative new medicines continues to be a systemic problem in the UK … The UK is a world leader in the research, development and manufacture of medicines, but is one of the slowest to enable patients to have access to innovative new treatments. This is a situation that must be addressed.”

In response, NICE has said that it had to recognise how new products added to the existing care already available, and if they cost a lot and did not add much in terms of improvement, that would affect whether they would be promoted. NICE had consulted with patients and doctors and concluded that the cost did not justify the relative improvements made compared to current standard care available.

In this instance, Wintersteiger, an Austrian business, accused its German competitor, Products 4U, of registering the adword “Wintersteiger” so that, when a consumer searched for “Wintersteiger” on google.de, the Product 4U website came up. Wintersteiger issued proceedings for trade mark infringement in the Austrian courts, as it had registered the word mark “Wintersteiger” in Austria. The Austrian courts had initially rejected the application on the grounds that it did not have jurisdiction as the issue related to google.de and not google.at.

Advocate General Cruz Villalón, an advisor to the ECJ, had advised that proceedings could be brought (i) in the country where the infringed trade mark was registered (in this case, Austria), or (ii) in the country corresponding to the country code in the relevant search engine’s top level domain name (in this case Germany).

However, the Advocate General’s views are not binding, and the ECJ ruled in a slightly more restrictive way in relation to (ii) above; that such claims can only be brought in that member state if the alleged infringing advertiser has an “establishment” there. It is not clear what “establishment” means, and whether it means anything different from “domiciled”, as the ECJ didn’t give an opinion on that specific point; future cases on this will hopefully clarify that issue.

The Information Commissioner’s Office had agreed with the FSA’s decision, but now the Information Rights Tribunal has ruled that the names should not have been withheld as they did not amount to “personal data”. To be “personal data” under the Data Protection Act, the data needed to be biographical to affect the people’s privacy. Just providing the name was not something so as to affect their privacy. That might have been different, however, if the nature of the people’s involvement gave away other information about them and their views, such as if they worked for an organisation that conducted experiments on animals. That was not the case here, though.

The Court of Appeal has now ruled on the terms of an injunction to ensure that no further infringement takes place, and has rejected Asda’s application for permission to appeal the decision to the Supreme Court. Specsavers and Asda had agreed that the injunction should prevent Asda from using the straplines “be a real spec saver at Asda” and “spec saving at Asda” as well as the logo comprising two adjacent ellipses, which were the subject of the successful claim by Specsavers under article 9(1)(c). However, Specsavers wanted the injunction to cover similar uses of the straplines and logo as well, whereas Asda said that more general wording was not needed as it had stopped using the straplines and the logo in any case.

The Court of Appeal ruled that, because:

(i)           Specsavers and Asda were still competitors and Asda’s original campaign specifically targeted Specsavers’ customers; and

(ii)          Asda had not given any undertaking as to its future conduct;

a general form of injunction, as applied for by Specsavers, was appropriate. This was to ensure, for example, that Asda did not use straplines that were merely a slight variation from those that the Court of Appeal’s had originally ruled infringed Specsavers’ trade marks.

In addition, the Court of Appeal rejected Asda’s application for leave to appeal to the Supreme Court. Asda’s argument was that the injunction was not justified by the infringement that had taken place, but the Court of Appeal rejected that argument.

The European Commission is already looking into whether Google is abusing its dominant position in the way in which it lists competitors’ sites. If found guilty of breaching European Union competition law, Google could face very tough sanctions including a fine of up to 10% of its turnover. No doubt, the slow wheels of this case will run and run for many months yet.

 It was a question of fact on a case by case basis as to whether the linking site was liable. In this case, the two web sites seemed to be closely associated and the home page of the .org site went through to the .net site. Although this ruling does not mean that the Foundation was liable, the Court refused to grant the strike out application and said it should be decided at trial as the result was not sufficiently certain.

We now await the main court case to find out more about liability for sites that provide a link.

“co-operate with each other in good faith and… take all reasonable action as is necessary for the efficient transmission of information and instructions and to enable the Trust… to derive the full benefit of the Contract.”

Medirest argued that the clause should be interpreted widely – that it included a general obligation to co-operate in good faith, and a restricted obligation to take reasonably necessary action to transfer information and allow for full benefit from the agreement. The Trust argued with this interpretation, and said that both obligations were restricted to the transfer of information and to allow for the full benefit of the agreement, so there was no general duty to co-operate in good faith.

The agreement contained a provision that allowed for service credits (a reduction in fees payable to Medirest) if Medirest failed to perform any of its obligations under the agreement, and the Trust could terminate if service credits reached a certain level. On the flip side, Medirest could terminate the agreement if the Trust committed a material breach. The Trust argued that it was entitled to service credits, and Medirest disagreed, resulting in each party serving the other with notice of termination of the agreement.

The High Court ruled that the clause set out above did contain a general contractual duty to act in good faith. The High Court noted that the services to be provided were catering services within a hospital, so on-going co-operation was an inevitable part of the contractual relationship; it interpreted the clause as it understood the parties’ intentions to be when entering into the contract – to co-operate in good faith.

The High Court went on to say that the Trust had abused its contractual powers in relation to service credits. The High Court said that the purpose of service credits was to make sure performance was at a consistently good level, but not to get discounts in the fees payable to Medirest, and the Trust’s calculations of service credits often went beyond what was reasonable. The Trust acted arbitrarily, capriciously and irrationally in the way in which it carried out the credits.

The result was that Medirest were entitled to terminate the agreement as the excessive service credit calculations were material breaches of the agreement. In fact, Medirest argued that the Trust’s breaches were repudiatory i.e. the breaches were sufficiently serious to go to the heart of the ability to carry on the contract and allow Medirest to treat the agreement as terminated with immediate effect, and giving Medirest the right to sue the Trust for damages.

Simon Weinberg, a solicitor in the Commercial/IP/IT department at Matthew Arnold & Baldwin LLP, commented, “This case is a cautionary tale not to abuse powers that you might have under a contract. The High Court has made clear that service credits are a defensive right, not an offensive right, and, unless performance by the other party warrants it, excessive service credits will not be considered appropriate. A contractual party with the benefit of service credits needs to use their common sense when they impose service credits under the contract, unlike the Trust in this instance. The Trust seemed to completely disregard the duty of good faith and destroyed any commercial relationship it had with Medirest. Even if there is no specific duty of good faith within an agreement, such an aggressive stance is not advisable in any contractual relationship and is inevitable road to disagreement and possible litigation.”

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “In my view, these are breaches of the Act, but not really serious breaches. Considering the flagrant breaches of data protection laws carried out by some, it would be unfortunate if an organisation’s mistake that did not reveal very private categories of data went punished when it does so much good. However, it should still be a salutary lesson to always have regard to data protection laws.”

The purpose of the NPPF is to streamline planning bureaucracy, by condensing 44 planning policy statements and guidance notes (and thousands of pages) into a single 59-page document. It also:

1. Contains the economic, environmental and social planning policies for England;

2. Sets out the Government’s planning policies for England and how they are expected to be applied; and

3. Must be taken into account in the preparation of local and neighbourhood plans.

The central theme of the NPPF is the “presumption in favour of sustainable development.”

The definition of “sustainable development” has been expanded so that it now includes reference to the social and environmental benefits of development. It includes five “guiding principles” of sustainable development, as set out in the UK Sustainable Development Strategy: living within the planet’s environmental limits; ensuring a strong, healthy and just society; achieving a sustainable economy; promoting good governance; and using sound science responsibly.

The NPPF lists 12 key planning principles that should be taken into account in both plan-making and decision-taking. Planning should:

1. Be genuinely plan-led;

2. Not simply be about scrutiny;

3. Be pro-actively driven and support sustainable economic development;

4. Always seek to secure high quality design and a good standard of amenity;

5. Take account of the different roles and character of different areas;

6. Support the transition to a low carbon future in a changing climate;

7. Contribute to conserving and enhancing the natural environment and reducing pollution;

8. Encourage the effective use of land by re-using brownfield land;

9. Promote mixed use developments;

10. Conserve heritage assets;

11. Actively manage patterns of growth; and

12. Take account of and support local strategies to improve health, social and cultural wellbeing.

Some key points

1. The NPPF encourages the effective use of land by re-using land that has been previously developed (i.e brownfield land), provided that it is not of high environmental value;

2. Planning policies should be positive, promote competitive town centre environments and set out policies for the management and growth of town centres. The NPPF retains the “sequential approach” to planning applications for main town centre uses. This requires most central town centre sites to be developed for shops, leisure and offices before out-of-town sites. However, an exemption to the sequential approach is included for small scale rural offices or other small scale rural development;

3. Local Planning Authorities (LPAs) should identify and annually update a supply of sites sufficient to provide five years’ worth of housing against their housing requirements, with an additional buffer of 5 per cent to ensure choice and competition in the market. Where there has been a history of persistent under-delivery of housing, LPAs should increase the buffer to 20 per cent to provide a realistic prospect of achieving the planned supply and to ensure choices and competition in the market for land. However, there is recognition that housing land supply can best be met through new settlements or extensions to existing towns and villages;

4. The NPPF continues to protect land designated as green belt. As with previous green belt policy, inappropriate development should not be approved except in special circumstances. New buildings within the green belt, subject to a limited number of exceptions, are inappropriate. It should be noted that renewable energy projects will often be inappropriate development, and in such cases, the developer will need to demonstrate very special circumstances if projects are to proceed; and

5. Transitional provisions have been introduced to give local authorities a 12 month reprieve (until 26 March 2013), provided that the local development plan does not conflict too much with the NPPF.

The future

It is absolutely clear that we have entered a new planning era, although it will be some time before we see its full effect. There will undoubtedly be a period of uncertainty while LPAs try to interpret and then apply the transitional provisions.

Through the NPPF, the Government is attempting to support employment and growth, whilst serving the interests of local communities and the environment by keeping the relevant checks and balances in place. Development powers have been transferred to local authorities, and local communities will be able to decide where new homes (and the infrastructure to support them) should be built.

Lesley Seldon was a partner at a law firm that had a policy of retiring partners at 65. When Mr Seldon reached the age of 65, he was duly retired under the partnership deed.

However, Mr Seldon brought an unlawful age discrimination claim under regulation 17 of the Employment Equality (Age) Regulations 2006, which prohibits discrimination on the ground of age against partners.

At the subsequent hearing, the Employment Tribunal found that the law firm’s retirement policy was justified, stating that it was a proportionate means of pursuing the firm’s legitimate aims of:

1. Giving the firm’s younger associates an opportunity of reaching partnership within a reasonable timescale, thus giving them an incentive to remain with the firm;

2. Facilitating workforce planning, by giving reasonable expectations on when partnership vacancies would arise; and

3. Limiting the need to expel underperforming partners.  

Subsequent appeals by Mr Seldon to the Employment Appeals Tribunal and the Court of Appeal failed.

Mr Seldon appealed to the Supreme Court on the basis that it was wrong to use the same test for justification for both direct and indirect age discrimination (and the aims pursued by the firm did not justify direct age discrimination), and that the treatment had to be justified in relation to his case and not just the retirement policy in general.

The Supreme Court unanimously dismissed the appeal, but remitted the case to the Employment Tribunal on an outstanding issue to consider whether the choice of a mandatory age of 65 was a proportionate means of achieving the legitimate aims of the partnership.

The ruling means that an employer can set its own default retirement age; however, it must have a legitimate aim and be able to provide evidence to justify its means of achieving it.

Although the case provides some clarity for employers over the issue compulsory retirement, some uncertainty remains. The fact that the Supreme Court has remitted the issue of proportionality back to the Employment Tribunal means that, currently, the issue of when particular retirement ages are justified is still a grey area. The issue of what age (60, 65?) is a justifiable retirement age remains unresolved.

Points to note

1. The ruling applies to compulsory retirement ages for all employees (and not just partners);

2. The employer will have to prove that there are problems with recruiting younger workers in the firm’s industry/sector (and that this is a direct result of retaining older workers);

3. The employer will have to show that its chosen mandatory retirement age has been set at a level that is appropriate and necessary to achieve the firm’s particular aim in question; and

4. The employer (or partnership) will have to carefully draft retirement policies that explain the need for a retirement age.

If you would like to discuss the implications of this ruling for your business, or anything else employment-related, please contact me at michael.delaney@mablaw.com.

Mental ill-health has a huge detrimental effect on productivity: 91m work days are lost every year, costing businesses £30bn a year through lost production, recruitment and absence.

Mental illness, including dementia, depression, bipolar disorder, obsessive compulsive disorder and schizophrenia, is classed as a disability (at the point of diagnosis) under the Equality Act 2010, making it unlawful for an employer to treat a disabled person less favourably for a reason relating to their disability, without a justifiable reason.

It therefore makes good sense for an employer to take steps to understand and addressing mental health in the workplace.

This step-by-step guide intends to shows employers and managers how to:

1. Spot early the signs of mental ill-health;

2. Raise awareness of mental health issues among managers and staff;

3. Develop a culture where an employee feels comfortable disclosing their condition;

4. Approach an employee who may have a mental health condition; and

5. Try to help the employee cope with their condition or overcome it so they can work effectively again.

If you are unsure whether your workplace equality policies sufficiently cover mental illnesses, please contact me at michael.delaney@mablaw.com.

The judgment given by Mr Justice Tugendhat also contains a useful reminder of the factors which the court will take into account when it receives an application to extend service of a claim form pursuant to CPR 7.6(2).  

Background

The dispute between the parties concerned an alleged libel where a one year limitation period applied.  The claim form was issued on 11 May 2011 shortly before the limitation period expired and the deadline for service was midnight on 11 September 2011.  The claimants’ solicitors wrote to the defendant’s solicitors asking if they were instructed to accept service or to provide a current address for the defendant.   On 30 August 2011, without giving notice to the defendant, the claimants obtained an extension of time for service of the claim form until 11 November 2011. The order granting the extension expressly provided for the defendant to apply to set it aside.  The claimants served the claim form on 9 November 2011. On 19 September 2011, the defendant applied to set the order aside but the application was refused with the Master making an order permitting alternative service on the defendant’s solicitors. The Defendant appealed.

The Law

·         Default address for service

Where a defendant does not give an address for service, personal service is not mandatory and service under CPR 6.7 and CPR 6.8 does not apply and so the claimant may serve the defendant at his “default” service address, under CPR 6.9. The places for service will differ depending on the nature of the entity to be served (set out in the table at CPR 6.9(2)).  The provisions of CPR 6.9(3) – (6) provide that where a claimant has reason to believe that the address of an individual defendant is at an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

·         Extension of time for service

A claimant may apply for an extension of time in which to effect service of the claim form. Generally, however, such applications should be made promptly by the claimant and before time for service has expired (CPR7.6(2)). The Court has a discretion to grant such an order.    In the case of Cecil v Bayat (2010 EWHC 641) the Court of Appeal set aside two orders which had extended the time for service of a claim form until after the expiry of the limitation period.  In Bayat, the Court of Appeal held that a claimant waiting for a decision regarding third party funding did not amount to a good reason for a deliberate decision to delay service of the claim (and which therefore meant an extension of time).  The court said that the claimant should have served the claim form promptly and then requested a stay from the court pending finalisation of funding arrangements.  The Court of Appeal held that the primary question in a case where the limitation period was engaged was if an extension of time was granted, whether a defendant would or might be deprived of a limitation defence. It was for a claimant to show that his “good reason” for not serving the claim form directly impacted the limitation aspect of the problem (for example, where a claimant could show that he had been delayed in service for reasons out of his control or that he could not have known about the claim until close to the end of the limitation period).

The Decision in Hallam Estates

In Hallam Estates Ltd  Mr Justice Tugendhat allowed the defendant’s appeal and held that the order of 30 August 2011 which granted the claimants an extension of time for serving the claim form should be set aside.

Mr Justice Tugendhat said that the Master who granted the extension of time for service of the claim form had erred in failing to consider the reasons why the claimant had not served the claim form during the stipulated four month period (in accordance with CPR7.5)  He also said that the Master had failed to accord appropriate weight to the loss to the defendant of a limitation defence. It was also noted that the court had not received any appropriate evidence as to why the claimant had left it so late to try to effect service. He made the following points:-

• The overriding objective in litigation was for the court to deal justly with cases. Thus the court should always consider the reason/s why a claimant had not served a claim form within the specified period. It was not possible to justly deal with an application for an extension of time under CPR 7.6(2) without knowing why a claimant had failed to serve a claim form within the specified period.
• The distinction was made between a claimant who seeks the court’s help to overcome a “genuine problem” encountered in attempting to carry out service of a claim form or a claimant who seeks relief from the court because he has just (and negligently) left service too late – the latter case where a claimant should not be entitled to the court’s help.
• By extension therefore, where there the court finds there to be good reason for failure to serve a claim form within the specified period, an extension of time will usually be granted. However, the weaker the reason given by the claimant,  the more likely the court will be to refuse to grant the extension
  • A defendant’s solicitors are under no obligation to the claimant to reveal a defendant’s address for service.
  • Until a defendant has been served with a claim form, a defendant may be aware that proceedings are likely to be issued but cannot do anything to move the process along.
  • The stronger the claim, the more important  the defendant’s limitation defence which should not be circumvented by seeking to obtain an extension of time for serving a claim form, save in exceptional circumstances

It will no longer be enough to obtain consent automatically on a general basis through a user’s browser; other steps will be needed. This has led to concerns as to how it will affect the user-friendliness of sites. But the law is clear – consent is needed. How to show consent is not clearly set out in the new law. The Information Commissioner’s Office has provided some guidance with suggestions. The type of consent the user must give will vary according to what the cookie contains, at what point in the process it is placed and also according to what the user may already have agreed to. See the guidance here. However, despite the guidance being updated in late 2011, it does not give totally definitive answers.

We have already been advising clients on how to comply with this new law and have come up with some practical suggestions of our own. If you would like to obtain our advice, please contact us on mark.weston@mablaw.com or paul.gershlick@mablaw.com.

The contract did not specify the operating hours of the airport. Initially, the airport opened or stayed open outside of its published operating hours for early or late flights respectively, as it seemed common ground between the parties that Jet2 needed flexibility to operate. However, BAL made an operating loss over that period and, after four years, refused to accept flights that were scheduled for arrival or departure outside of its published operating hours, giving Jet2 just one week to comply.

Jet2 issued proceedings against BAL for breach of contract. BAL argued that its ”all reasonable endeavours” obligation did not oblige it to act against its own commercial interests – i.e. to allow the flights to continue to run outside of its operating hours despite the airport making a loss as a result.

The High Court ruled that BAL had breached the agreement, rejecting BAL’s justification of protection of its commercial interests. The High Court ruled that the initial intention of the parties in the agreement could not have been for BAL to change what it did on an on-going basis based on what profit it was making as a whole – this profit was affected not just by Jet2’s flights, but also by a number of other problems it faced. The High Court stated that those other problems should have been considered in a risk assessment by BAL before entering the agreement, and did not justify BAL restricting or stopping performance of its obligations under the agreement if it became unprofitable.

The Court of Appeal has recently upheld the High Court’s ruling. In doing so, the Court of Appeal has highlighted that, in interpreting “endeavours” clauses, courts should consider whether the clauses have sufficiently clear objective criteria to place obligations on the parties. Otherwise, they could be unenforceable. The Court of Appeal ruled that the relevant clauses in this particular contract were sufficiently certain, although one of the judges did dissent from this view. The Court of Appeal also agreed that BAL’s losses, which it used as evidence to support its decision to stop flights running outside of operating hours, was not enough to justify its actions; rather, the Court of Appeal said that if it had become obvious that Jet2 could never operate profitably from Blackpool Airport, BAL would have been justified in not spending more money to promote it.

Simon Weinberg, a solicitor in the Commercial/IP/IT team at Matthew Arnold & Baldwin LLP, commented, “This ruling highlights several points for commercial parties to consider when looking to include endeavours clauses in a legal agreement between them. The first is that, whilst endeavours clauses are useful, it is often much better to insert fixed obligations in the contract; although this is sometimes difficult, it is much more certain for the parties in interpreting their obligations going forward.

“The second is that, whilst it is understood that best endeavours usually means a party has to incur some cost in performing its obligations in order to comply, it is a question of fact in each instance. Here, BAL had breached the best endeavours clause but the Court of Appeal set out a situation where BAL would have been justified in its actions.

“Finally, this case again shows the need for legal advice in negotiating and drafting a commercial agreement; neither of the parties in this case received significant legal advice and it has since cost them substantial amounts in time and money to get to this point. Good lawyers will help to avoid problems of interpretation in contracts in the long term by drafting an agreement with clarity whilst also understanding the commercial reality of what the parties are trying to achieve.”

Another survey by the UK’s data protection regulator showed that 1 in 10 people had admitted to not deleting data from mobile phones, computers or laptops. In addition, 65% hand on their old phones, computers and laptops to another user, with 44% giving it away to somebody else for free and around one in five (21%) selling it to somebody else.

The Information Commissioner, Christopher Graham, said: “We live in a world where personal and company information is a highly valuable commodity. It is important that people do everything they can to stop their details from falling into the wrong hands.”

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “The results of the survey are surprising only in the sense that they are not worse. Many individuals and businesses either do not wipe data properly before dumping or selling them or fail to do so or use appropriate service providers who carry out this function properly. Businesses which fail to properly erase their data to a high enough standard could find that they are not only in breach of the Data Protection Act, but their valuable trade secrets are then used by competitors, possibly without their knowledge. For more information on what to do to comply with the law and protect your valuable assets, please contact me.”

For more on the ICO surveys, click here: http://www.ico.gov.uk/news/latest_news/2012/ico-report-finds-people-becoming-a-soft-touch-for-online-fraudsters-25042012.aspx.

Social networking sites can process the photos without breaching data protection law if that processing is being done to check whether consent has been obtained, but, once that check has been finalised, the site must delete that information.

Facebook currently uses facial recognition technology to suggest the names of people featured in photographs to the uploaders. The name tags used by the uploaders can be viewed by other Facebook users.

Aside from consent, the Article 29 Working Party said that the social networking sites would need to take adequate technical measures such as encryption while the images are being uploaded. They should also use technical controls to try to safeguard against the images being used by third parties for purposes for which the user had not consented. To add to the regulatory burden, the body added that compliance with EU data protection law also meant giving the data subjects sufficient access rights to their images and not storing more data than was necessary for the tagging purpose.

The Working Party’s opinion also included some comments on the use of facial recognition technology by search engine providers and gaming services.

The Opinion is not legally binding, but it is best practice to comply with it, particularly as it gives an indication as to the action that the regulators would take to enforce the law.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “The Working Party has once again taken a strict pro-privacy stance in providing an opinion. This is similar to the tough line it took against social networking sites and others in its opinion last year on geo-location services. For more on that geo-location opinion, click here: http://www.mablaw.com/2011/06/article-29-working-party-geo-location-data/.”

Paul Staines, who runs the “Guido Fawkes” political blog, published the “Blue Book” section of the files from Operation Motorman, which included a list of journalists who had instructed private investigators on blagging assignments and the instructions those journalists allegedly gave.

The ICO said that Staines’ actions were “irresponsible” and potentially themselves also a breach of data protection laws. It has also said that those concerned that they were victims of blagging in relation to Operation Motorman could contact the ICO for a fast-tracked data subject access request. In addition, the on-going Leveson inquiry into press standards was considering the issue of publication.

Staines has defended his actions by claiming that the publication will help victims of blagging to take action against offenders and that it was in the public interest, a potential defence under the Act to the unlawful obtaining, disclosing or procuring of personal data. However, not all of the journalists on the list may have necessarily committed an offence.

The High Court has dismissed that argument. It argued that no promissory warranty or misrepresentation applied on the facts. It stretched belief to suggest that an issue such as that would not have been reflected in an updated draft of the agreement or a side letter. There was not even a note of the meeting. Ghanem’s position was all the more unlikely given that its lawyer had been present at the meeting. The Court said that what had seemed to have happened was that Ghanem had been under a misapprehension based on what it had wanted to happen and it had been comforted by what Jaguar said that it did in practice. However, that was not the same thing as saying that Jaguar had made a legally binding promise.

The proposed law would also require manufacturers of devices that can access the Internet (including mobile phones) to ensure that those devices have filtering functionality installed.

ISPs have criticised the proposed law over concerns that it would lead to over-blocking and also because it leaves open the question as to who decides what is and what is not pornographic.

There is still a fair bit to do to bring this to market. The next step is for the scientists to switch ingredients and replicate drugs already available in pharmacies. They also hope to work with engineers to increase the printer’s speed and resolution. And then there will be the regulatory side to worry about given that people will be able to download recipes and print out their own medicines. The scientists say this will revolutionise healthcare when it becomes a reality, and it is not hard to see why.

Print out your own drugs, anyone?!

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “I have given quite a lot of training on the Bribery Act. The new legislation has taken the UK from having some of the most lenient legislation to the strictest anywhere in the world. For example, there is no defence to facilitation payments – routine payments made to local officials that enable organisations to do business in a particular country. It is therefore not surprising that the OECD has no problem with the new law. It is a concern, though, that it has raised issues surrounding its implementation. However, nearly a year after the law was implemented, we still await a high-profile public prosecution under the new regime.”

The report can be accessed here http://www.oecd.org/dataoecd/52/19/50026751.pdf.

Statutory Maternity, Paternity and Adoption Pay

1. The standard rates of statutory maternity, paternity and adoption pay increase from £128.73 to £135.45 per week. The weekly earnings threshold for these payments rose from £102 to £107.

2. Maternity allowance increased from £124.88 to £135.45, with the earnings threshold remaining at £30.

Statutory Sick Pay

The standard rate of statutory sick pay increases from £81.60 to £85.85 per week.

Apprenticeships

The Apprenticeships (Form of Apprenticeship Agreement) Regulations 2012 prescribe the form of the apprenticeship agreement between an apprentice and an employer in England and Wales under s.32 of the Apprenticeships, Skills, Children and Learning Act 2009.

The Regulations state that apprenticeship agreements entered into under the Apprenticeships, Skills, Children and Learning Act 2009 must contain the basic terms of employment required to be given to employees under section 1 of the Employment Rights Act 1996. This can be in the form of a written statement of particulars of employment, a written contract of employment or a letter of engagement.

The apprenticeship agreement must also include a statement of the skill, trade or occupation for which the apprentice is being trained under the relevant apprenticeship framework.

Under section 35 of the Apprenticeships, Skills, Children and Learning Act 2009, an apprenticeship agreement entered into under the Act has the status of a contract of service and not a contract of apprenticeship.

Employment tribunals

1. Deposit orders. The amount of deposit order an employment tribunal will be able to order a party to pay as a condition to continuing with tribunal proceedings has increased from £500 to £1,000.

2. Costs awards. The maximum amount of costs an employment tribunal can award in favour of a legally represented party (without referring the case to the county court for detailed assessment) has increased from £10,000 to £20,000.

3. Witness expenses. Employment tribunals now have the power to order parties to bear the costs of witness attendance; the party who loses the case will have to reimburse the successful party for any such costs that have already been paid out.

Unfair dismissal

The unfair dismissal qualifying period has increase from one to two years.

Employees whose employment commenced on or after 6 April 2012 will need two years’ service before accruing the right to claim unfair dismissal or becoming entitled to written reasons for dismissal.

The qualifying period will continue to be one year for those employees whose employment commenced before 6 April 2012.

If you have any concerns about these changes and how they will affect your business, or want to discuss anything else employment-related, please contact me at michael.delaney@mablaw.com.

The Prime Minister has said: “The UK boasts a world-leading life sciences sector which is changing at an incredible pace.  And I’m absolutely committed to helping it widen its significant foothold in the global market”.

More information on how to apply can be found here: http://www.innovateuk.org/content/competition/biomedical-catalyst.ashx.

Attributing that knowledge to the parties allowed the High Court to imply a term. In this particular case, the High Court stated that if its ruling went any other way the tenant would receive a “windfall” that was not intended or expected, although the facts of this case were specific. The legal principle attributed to the parties here was that adding to the property covered by a tenancy would constitute the grant of a new lease. The High Court ruled that this was part of the knowledge available to the reasonable observer of the contract.

This ruling sets out a clear principle about implying terms into contracts in general – clear and well-established legal principles are attributed to the parties of a contract in deciding whether to imply a term into that contract.

BIS is consulting in five areas:

1)      the consolidation and simplification of consumer law investigatory powers so that officers’ powers are transparent to enforcers and businesses alike;

2)      making it easier for Trading Standards Services to tackle rogue traders operating across local authority boundaries;

3)      enabling officers to present cases in County courts to encourage more use of civil enforcement to avoid over-reliance on criminal prosecutions;

4)      allowing local authorities more flexibility in training their Trading Standards staff which provides assurance to businesses of officers’ competence and focuses on local needs; and

5)      removing restrictions on how Trading Standards Services calibrate their measurement standards, by enabling competition and thereby reducing costs to local authorities.

The laws under review in the consultation do not all apply across the UK so any proposed changes to the law will have to take regional differences into account. The consultation will run until 20 June 2012.

Landlords must now register a tenant’s deposit, comply with the initial requirements of an authorised scheme and serve the tenant with Prescribed Information within 30 days of a deposit being received.

In respect of existing tenancies which are in effect on or after 6 April 2012, landlords have until 6 May 2012 to comply with the new requirements to avoid falling foul of the requirements.

If a landlord fails to comply with the requirements and a tenant issues proceedings at Court for such a failure, the Court must order the landlord to:

1. repay the deposit to the tenant or protect it; and

2. pay the tenant between one to three times the value of the deposit.

Further, a landlord is prevented from serving a section 21 notice seeking possession if the requirements have not been met.

If you need further information please contact me at faiza.ahmad@mablaw.com.

1)    Guidance on identifying data controllers and data processors

The guidance focuses on the key issues to consider when determining who is a data controller or a data processor. The guidance makes it clear that it will not always be clear-cut and that there will be some instances where the line between data controller and data processor will be blurred.

For example, a data controller may be made up of two bodies acting jointly, usually a client and a service provider where the service provided is the processing of personal data. The client will usually be the data controller and the service provider the data processor, but the distinction is not as clear-cut where the service provider is given flexibility in carrying out the client’s instructions or where the service provider provides the service in accordance with externally imposed professional standards.

The guidance recognises that, where there is a joint data controller, there needs to be flexibility to allow for practical arrangements to be made to fulfil the data protection obligations of both; for example, one obligation can be taken on by only one of them provided that it reflects the reality of the relationship between the parties.

2)    Guidance on the use of the section 31 exemption

Section 31 of the DPA can be used by regulatory bodies to withhold information requested or to be provided under the subject information provisions defined in section 27 of the DPA. The exemption applies where the application of the subject information provisions might prejudice the regulator’s discharge of its functions. The guidance makes clear that this test for this prejudice of its functions is a strict one.

The guidance adds that:

a)    the section 31 exemption cannot be used in relation to internal investigations or complaints handling functions; and

b)    where a business (such as a bank) supplies data to an ombudsman in relation to a customer complaint, as the ombudsman can rely on section 31 to resist a subject access request, the business can withhold data as if covered by section 31 even though it would not normally be covered.

The Guidance can be found here: www.ico.gov.uk/~/…/Data_Protection/…/disproportionate_effort.pdf.

The app had been downloaded from iTunes 70,000 times before its withdrawal. It allowed users to access the location data of nearby users and also to access profiles of nearby users in a map format.

The consultation relates to draft guidance published by the ICO on the conduct of security audits. The consultation focuses on the form of the guidance rather than its content.

The High Court sided with Jet2. The email had not been a valid notice. The contract had not provided for a specific form of notice that had to be given, but in light of the seriousness of the email (as SC sought to suggest it could bring about termination) it had not been identified in such a serious way. There was nothing to suggest that SC had intended the email to act as such at the time it had been sent. The Court also ruled that SC did not have a common law right to terminate for late payment as time for payments had not been of the essence and there was nothing in the contract to suggest this was the case.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This is the classic case of an agreement that started off well turned sour when it became unprofitable for one of the parties and that party not following a process that would justify termination. Where one party purports to terminate the contract and the other party does not agree with that, it inevitably leads to an all or nothing situation where either one party is justified in terminating for the other’s repudiatory breach or the party terminating is itself in repudiatory breach for terminating. Getting the process of termination right is therefore critical to the outcome.”

Facebook has made the move after Yahoo!’s recent issuing of proceedings against Facebook for the infringement of 10 patents including those involving messaging, news feed generation, display of advertising, and click fraud and privacy controls.

The defence was born in a case involving the former Irish Prime Minister Albert Reynolds and is also known as the “Reynolds defence”. It seeks to protect reports of a story which, although untrue and damaging to a person’s reputation, are in the public interest to be reported provided that the reporting has been conducted responsibly. Flood was actually investigated and no criminal charges or internal charges were actually brought. This became clear after the newspaper had published the story, but a separate issue remains to be decided as to whether the online version of the story can benefit from the defence as the newspaper had failed to amend that version following the results of the police investigation.

The Supreme Court judgment can be found here: http://www.bailii.org/uk/cases/UKSC/2012/11.html.

The report found copyright licensing problems, such as complex processes and difficulties in working out copyright owners, in the education sector and in the publishing, audiovisual and music industries. A second phase of the report will be an industry consultation as to how to solve these problems.

The opinion also outlined other concerns that the Article 29 Working Party has about the proposed Regulation, such as the obligation on regulators to impose fines in the event of a breach (rather than a discretion to impose a fine) and the way that regulatory responsibility had been drafted in the proposed Regulation.

The Commissions have made the recommendation in the hope that it will form part of the “Consumer Bill of Rights” that is due to be published by the Government later this year. They also highlight that the law is currently not easy for consumers to use and is different throughout the UK.