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.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, welcomed the decision but raised a warning: “This is fantastic news for people with prostate cancer and their families. It is also seemingly good news for the NHS.

“However, at what price? There is much concern in the industry that as costs of bringing new drugs to market are increasing, the price they can charge is falling as pressures are increased on NHS budgets to obtain more for less. In particular, there is concern over the QIPP Agenda, in which the Department of Health has to find billions of savings to obtain better value, and value based pricing – the new pricing regime about which there is currently not much certainty. If people who invest in research and development in bringing new drugs to market are not sufficiently incentivised to make the profits that ultimately reward their investment and associated risks, we could all suffer in the long-term. It is important that new drugs are valued appropriately to incentivise the new wave of drugs.”

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.”

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.”

The Bill has not had a smooth journey through Parliament, with the proposed amendments receiving no less than 14 defeats on votes in the House of Lords.

However, all defeats were reversed in the House of Commons.

It is now inevitable that the Government will enshrine in law a major part of Lord Justice Jackson’s proposals by no later than April 2013. Among the main changes will be; (1) the abolition of the right of claimants to claim from the opposition success fees and after-the-event insurance premiums from defendants; (2) the introduction of contingency fees, where claimants can fund their claims by paying their lawyers a percentage of the compensation awarded.

LASPO will be introduced in conjunction with a raft of new Court procedure rules to implement some, but not all, of the other Jackson reforms which did not require primary legislation.

Now that the legislation is settled, MAB will be preparing a full report on the reforms, to be published over the Summer.

Current Definition

What is ‘proportionate’ is the guiding principle for all litigation following the introduction of the Civil Procedure Rules (CPR).

The CPRs refer to the idea of obtaining a just result in litigation with appropriate speed and expense.

The ‘overriding objective’ set out in CPR 1.1 requires courts to deal with cases justly in ways that are proportionate:

-      to the quantum involved;

-      to the importance of the case;

-      to the legal complexity of the issues in question; and  

-      to the financial position of each party.

In his final report on the reforms to the current civil litigation costs and funding system Lord Justice Jackson has said this current definition should be changed and has suggested how this might be done. 

It is Jackson LJ’s opinion that costs are ‘proportionate’ where they bear a ‘reasonable relationship’ to the quantum of that case and the legal complexities that surround it.

The addition of ‘reasonable relationship’ is the key alteration to the current definition.

Changes

Mr Justice Ramsey, who is standing in for Jackson LJ whilst he receives long-term medical treatment, told the Westminster Legal Policy Form that changes required by the Jackson reforms would be held ‘in escrow’ by the Civil Procedure Rules Committee for the planned implementation date of April 2013.

The detail of the definition for example will be left to the Civil Procedure Rules committee to draft and implement.

Whilst the changes do not come into force for almost a year the civil courts are already showing ‘some signs of a change in culture’ according to Ramsey J. 

He has however reiterated that ‘the change has to come so litigation can be conducted at proportionate cost’.

Case Management

Central to making the Jackson reforms work is an improvement in case management.  Ramsey J noted that particularly at district judge level there is a ‘much greater willingness to provide continuity of case management’.

Ramsey J has also drawn attention to the need for improvements to be made to the pre-action protocols.

These were brought into force with the purpose of seeking to reduce the costs of litigation, but Ramsey J pointed out that in some ways the opposite has occurred and they have increased costs.

Latest Position

The Legal Aid Sentencing and Punishment of Offenders (“LASPO”) Act which contains the Jackson Reforms received Royal Assent on 1 May 2012 and will be enacted in stages over the next year.

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.

Stephen Whitehead, the CEO of the ABPI, said: “I firmly believe partnership working is the future of healthcare in the UK. Generic medicines do save us money, but it is innovation that saves lives. We have to be careful not to focus on cost saving when we should be focusing on patients. ”

He highlighted the fact that developing new innovative medicines could save money elsewhere in care, such as with Alzheimer’s. He warned about the understandable concern for the NHS to keep prices down, as any failure to recognise and value innovation would mean lives would suffer. He saw the partnership opportunities as enabling the NHS and industry to work together for the good of improving healthcare.

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.

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.”

If parties are reluctant to agree all the terms and wish to ensure flexibility they may enter into a side letter which anticipates that a more detailed contractual document will eventually be entered into.  This does not, by itself, prevent it taking effect as a contract, but it runs the risk of it being held as a mere agreement to agree and too uncertain to be enforceable. If crucial terms are not included a court may decide that it is unworkable and void for uncertainty. 

Background

The background to this case was that the claimant, Mr Barbudev had built up a successful Bulgarian cable television and internet business. He intended to sell this business, but wished to purchase a 10% stake in a newly merged business, which was an important issue for him.  A side letter had been signed, the purpose of which was to protect Mr Barbudev’s right to invest in the combined business. Ultimately, however, the deal did not proceed and Mr Barbudev issued proceedings claiming the loss he had sustained as a result of the failure to honour the terms of the side letter.

As a starting point, the Court of Appeal had to consider the objective conduct of the parties as a whole.  As the Court explained, the onus of demonstrating that there was a lack of intention to create legal relations lies on the party asserting it and it is a heavy one. The Court of Appeal considering the terms of the side letter pointed out that it was necessary to ascertain what a reasonable person (i.e. one with all the background knowledge reasonably available to the parties in the situation that they were in) would have understood the parties to have meant.   The court must have regard to all the relevant circumstances and, in a business context it should prefer the construction that is more consistent with business common sense.  It is for the parties to decide at what stage they wish to be contractually bound.  They can agree to be bound contractually, even if there are further terms to be agreed between them.  The question is whether the agreement is unworkable or fails for uncertainty.

Since the court at first instance had held that the agreement was to be found in writing rather than based on any oral assurance and this was a decision of primary fact, the Court of Appeal was very reluctant to overturn that finding. In any event it was clear from the terms of the side letter that the parties intended to created legal relations.  This was based on the fact that it was drafted by solicitors and contained terms consistent with this intention. 

However, this did not necessarily assist Mr Barbudev as it did not follow that it created a legally enforceable contract as the court had to examine the nature of the legal relations that were actually created.  Although it was Mr Barbudev intention to have a binding agreement to safeguard his right to purchase a 10% stake, the side letter was no more than an agreement to agree.  It was an agreement to offer Mr Barbudev an opportunity to invest, but it was not a binding commitment and as an agreement to agree it was an unenforceable agreement.  Furthermore, the essential terms which the parties contemplated such as the investment and shareholder agreement were not dealt with and so even if the agreement was more than an agreement to agree it was not sufficiently certain to be an enforceable agreement.

Comment

This is an interesting example which demonstrates that although parties may intend to create legal relations it does not necessarily follow that a legally enforceable agreement is created: 

• First of all the court will examine the position from an objective perspective.  An intention to create legal relations can be demonstrated by the fact that it was drafted by solicitors and by looking at the language of the document and the terms of the letter.  In the side letter there were a number of general legal provisions such as the agreement relating to third party rights, an English law provision and the fact that it was intended to be confidential whatever the status of the other parts of the letter. These factors meant that there was an intention to create legal relations.
• However, a mere agreement to agree is not sufficient to form a binding agreement.  A party’s intention is not sufficient to form such a binding agreement where the terms of the actual agreement are to still to be negotiated.  Following the House of Lord’s case of Walford v Miles [1992] 2 AC 128 an agreement to agree does not constitute an enforceable agreement
• An agreement which does not contain the essential certain terms will also not be enforceable. The details of the critical matters were not included such as when and how Mr Barbudev could be bought out or get out of his investment.  There remained a number of crucial matters that needed to be agreed before a sufficiently certain contract could be made.

Where a party wishes to create a legally enforceable agreement then it is important that as many of the critical terms are agreed as possible in order to avoid the risk that it is void for uncertainty.  If terms are still to be negotiated despite an intention to create legal relations, the courts may be reluctant to enforce the side letter if it amounts merely to an agreement to agree only or if its terms are uncertain. Even where terms are not complete, it may be possible to resolve any difficulty if it is possible to apply a standard of reasonableness or the matters to be negotiated are of a minor nature.  However, if not, the courts cannot enforce an agreement with uncertain terms since it would be unworkable and it is not the job for the court to draft contracts.

Barbudev v Eurocom Cable Management Bulgaria Eood & Ors [2012] EWCA Civ 548

In this case, the Court of Appeal was prepared to interfere with the Judge’s decision on the question whether the defendant had behaved reasonably in deciding whether to refuse mediation. When faced with a request for mediation, the decision will remain an important one to exercise with care, but there may be good reasons that a party can rely on to justifiably refuse such a request as indicated in this Court of Appeal decision.

Background

The case itself centred on a claim for professional negligence, which had not succeeded at first instance nor on appeal. 

However, there remained the cross-appeal concerning the defendant’s unwillingness to mediate. The defendant declined to participate in mediation taking the stance that the claim was entirely without merit.  The defendant had offered to “walk away” shortly prior to the proceedings and had only responded to a Part 36 offer made shortly before the first trial by offering only to negotiate over its own costs if the proceedings were withdrawn. The Judge at first instance had considered the case of Halsey v Milton Keynes General NHS Trust [2004] in which the Court of Appeal identified the factors that could be relevant including:

• The nature of the dispute;
• The merits of the case;
• The extent to which other settlement methods had been attempted;
• Whether the costs of alternative dispute resolution would have been unreasonably high;
• Whether delay would have been prejudicial;
• Whether the alternate dispute resolution would have had a reasonable prospect of success.

The Judge had decided that there was a real possibility that had there been mediation, both parties would have gained a “better understanding of the weaknesses in their own case”.  The Judge also considered that the potential reputational damage to the defendant was a relevant factor. The Court of Appeal considered that the fundamental question was whether it had been shown by the unsuccessful party (the claimant) that the successful party (the defendant) had acted unreasonably in refusing to agree to a mediation.  In the Court of Appeal’s view that could not be shown and the Judge was wrong to bring into account, adversely to the defendant, the defendant’s attitude to mediation in deciding what costs overall should be awarded.  It was difficult to see quite what weaknesses would have been revealed by the mediation nor the relevance of reputational concerns.  Nothing changed in this case (unlike many cases) to necessitate a re-evaluation on the question of liability.  A reasonable refusal to mediate does not become unreasonable simply by being steadfastly maintained. It is important to make clear that parties are not to be compelled to mediate otherwise there is a risk that the threat of a costs sanction can be used to extract a settlement even where the claim is without merit.  Given the Judge’s decision on the core of issue of breach of duty the defendant’s assessment of the strengths and weaknesses had resonance. Accordingly his discretion was flawed and therefore the court decided to substitute a figure of 60% payable by the claimant to the defendant.

Comment

This case demonstrates that although it is unusual for an appeal court to interfere with a Judge’s discretion there may be circumstances which justify such an approach.  This case will bring some comfort to litigants who feel that they are being pressured into a mediation in order to avoid an adverse costs order.  When deciding whether to mediate, however, care must be exercised taking into account all the circumstances of the case, a party should take careful note of the approach as set out in the previous case of Halsey when making its decision and it may be necessary for this decision to be re-evaluated if new issues should come to light.

Swain Mason & Ors v Mills & Reeve [2012] EWCA Civ 498

The background

The claim alleged against Mr Jaffery was that, as an employee of the claimant, the Governor and Company of the Bank of Ireland (“the Bank”) Mr Jaffery had made secret profits and put himself in a position of conflict of interest and failed to disclose his wrongdoing and also accepted bribes.  The allegation centred on Mr Jaffery’s relationship with the second defendant, Mr Gill who was involved with the Berkeley group of companies to which the Bank had lent millions of pounds.

Mr Jaffery and Mr Gill had made a request for an adjournment initially in January this year, but Mr Justice Mann had refused this application on the basis that they were the authors of their own misfortune although he did move the trial back for a month.  Subsequently, the second defendant made a request for a further adjournment on the basis of his wife’s pregnancy and Mr Justice Mann put the trial back to March although refusing the substantive application on the basis that the Bank had agreed to pay for professional care of Mr Gill’s young children. 

Mr Jaffery now wished to adjourn the trial scheduled in March on the basis that he was in hospital. In order to decide whether to adjourn, the court made an order stating that it was not appropriate for the court to order Mr Jaffery to submit to a medical examination, but it could direct that the application be adjourned for the court to direct that unless Mr Jaffery submitted to an examination in hospital or elsewhere by one or two of the independent doctors instructed by the Bank then his application for an adjournment was likely to be rejected.  The court was concerned to ascertain whether Mr Jaffery was truly ill or simply delaying matters.

The decision

As Judge Vos explained, the question of whether to agree to an adjournment is one for the discretion of the court and requires the need for proper evidence upon which that discretion can be exercised and in particular proper medical evidence. He relied on two recent authorities.  In the case of Mark Levy (Trustee in Bankruptcy of Ellis-Carr) v Ellis-Carr, the Judge had noted that those parties that fail to attend in the hope of securing an adjournment are deeply mistaken.   It is necessary to have regard to the overriding objective.  The evidence should:

• Identify the party’s medical attendant and give details of his familiarity with the patient’s medical condition; and
• Give an opinion concerning the participation in the trial process, provide a reasoned prognosis and give the court some confidence that it is an independent opinion. 

The court can then decide how much weight to give to that opinion and what (short of an adjournment) arrangements might be made to accommodate a party’s difficulties arrangement.

In the second case of Forrester Ketley v Brent, the Court of Appeal noted that an adjournment is not simply there for the asking.  The litigant in person in that case was suffering from stress related to the litigation.  The stress was genuine, he was physically fit to attend the hearing, but emotionally vulnerable to stress.  In the case where the applicant complains of stress related illness an adjournment, it is unlikely to serve any useful purpose because the stress will simply recur on an adjourned basis.

In this case, the Judge noted that Mr Jaffery has been communicating with the court and with the Bank over a lengthy period of time in the most coherent of fashion.  He was plainly capable of expressing this point of view, taking decisions and advancing his case.  The Judge therefore concluded that there was no medical reason apart from stress preventing him from participating in the trial and it was unlikely to abate by adjourning the trial.

For the purposes of the application the Judge assumed that Mr Jaffery had a properly arguable defence.  He also considered the balance of justice and the overriding objective.  It was clear that massive costs had already been expended, the witnesses were ready, counsel’s availability was assured only for the 12 day estimated length of the trial and the trial had already been adjourned on two occasions.

It may be that Mr Jaffery was an inpatient but he could have been examined by a psychiatrist that afternoon and be out of hospital that night.  He was not incarcerated. Bearing in mind the trial was listed for 12 days, Mr Jaffery could come to court to present his defence and even to give his evidence.  These procedures would enable Mr Jaffery to participate in the trial even bearing in mind his medical condition and the stress caused by the litigation.  As such the application for the adjournment was refused.

Comment

This case confirms that where a party alleges that he has a medical condition the court will consider the application based on the overriding objective and the medical evidence.  A decision not to turn up in the hope that it will secure an adjournment is not enough and any party that does this will take the risk that the trial will proceed in their absence.  A court may require an independent medical expert (not merely an expert appointed by the party), who can attest to the party’s specific medical condition and enlighten the court about the reason why the party is prevented from attending trial. All too often a party may hope to delay matters and try to do this by claiming an adjournment on medical grounds.  This case along with the two authorities referred now should assist the court in deciding whether to accede to a request, how to accommodate the parties and filter out those genuine cases of need from those incalcitrant parties determined to delay matters without reason.

The Governor and Company of the Bank of Ireland v Jaffery & Gill [2012] EWHC 734

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.

http://www.judiciary.gov.uk/media/media-releases/2012/news-release-mediation-pilot-court-of-appeal

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.

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/.”

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.

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.

This poll is a blow to the Government, which has used the justification of the need to pass power to GPs level as a reason for pressing ahead with the reforms, but it will also need the involvement and enthusiasm of GPs to make these changes work.

In April 2013, the Health and Social Care Act will hand control of about £60bn of the NHS budget in England to GPs clinical commissioning groups, which will be responsible for planning and buying most routine healthcare for their local community. The Government says the Act would hand power to GPs, put patients at the heart of the NHS, and reduce needless bureaucracy.

1)    The amendment of the distance selling rules in the BCAP Code

BCAP has announced that the distance selling rules in the BCAP Code are to be restricted to business-to-consumer advertisements. This change means that the distance selling rules in the BCAP Code fit in with the Consumer Protection (Distance Selling) Regulations 2000 and with the CAP Code (which restricts non-broadcast advertising). The change came into effect on 23 March.

2)    Consultation on amending the comparative advertising and VAT rules in the BCAP Code

BCAP is proposing to remove the provisions of the BCAP Code that require comparative price claims to relate to identical or substantially similar products. This will allow advertisers more flexibility in comparative claims so that comparisons can be made between non-identical products that have the same function.

BCAP is also proposing to amend the rules relating to the inclusion of VAT in headline prices. The proposed amendment will mean that quoted prices should include mandatory taxes, duties, fees and charges that apply to most buyers, but that a VAT-exclusive price can be given if the price is addressed to an audience with no VAT liability or who can recover VAT. Those VAT-exclusive claims should, however, be accompanied by a clear statement of the rate of VAT payable.

The consultation is open until 4 May 2012.

The Group is holding an enquiry into the supply chain problems and is due to report back after Easter.

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.

For more, click here: http://www.oft.gov.uk/OFTwork/markets-work/private-healthcare/

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.