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Marketing activity needs to complement legal services

first_imgI had the privilege of studying under Dr Shiv Mathur, former marketing guru at Cass Business School (he retired in 1997). Mathur pointed out a major problem with ‘marketing’. There are no fixed definitions for any of the terms used. Marketing people make them up as they see fit. Fashion and changing markets throw up new definitions. What ‘banner ad’ meant then is very different from what it means today. From that standpoint, then, it’s not surprising that marketing and legal services often don’t mix very well. Though their aims may be the same (helping clients achieve things), the methods of communicating can be very different. Dr Mathur suggested marketing would never achieve its full potential until the marketing industry fixed the meaning of the terms it used. The professions had to do this more than a century ago. Medicine and the law have very strict and clear definitions which make communication very clear, efficient and effective. Here are what I believe to be the generally understood roles of marketing activity: Marketing directors – strategy: Deliver the answers to questions like, where will our customers be? What will they want between now and three to five years’ time? What does our organisation need to do profitably to serve our future client needs? Equivalent to a partner. Marketing managers – turn strategy into action: Organise the business’s internal processes profitably to serve future client need. Define the client groups and look for ways to communicate benefits to them through promotions. Equivalent to a senior solicitor fee-earner. center_img Marketing executives – daily work towards strategy goals: Usually the production end of the scale dealing with print, websites and promotional activity. Equivalent to an associate or trainee solicitor. Of course, these are subject to change at any moment, and I may be a little out of date. People tend to make up job titles to fit their career aspirations or as an alternative to pay increases. As marketing management becomes increasing important to the future of legal services, a clear understanding of where and how marketing skills can complement a solicitors’ firm will save a lot of time and expense.last_img read more

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Intellectual property

first_img (1) L’Oréal SA (2) Lancôme Parfums et Beauté and CIE (3) Laboratoire Garnier and CIE v (1) Bellure NV (2) Malaika Investments Ltd (T/A Honeypot Cosmetic and Perfumery Sales) (3) Starion International Ltd: CA (Civ Div) (Lords Justice Jacob, Wall, Rimer): 21 May 2010 Brand names – Comparative advertising – Infringement – Perfumes The court was required to determine issues of trademark law following a decision of the European Court of Justice. The appellants (D) had three ranges of products, each of which smelled like a famous, luxury-branded perfume known by a well-known registered trademark. The respondent (L) alleged that D’s use of comparison lists for each of their ranges of product, showing which products corresponded to which of L’s perfumes, infringed its registered trademarks for those perfumes. The evidence was that: D obtained a major promotional advantage from using such lists; neither customers nor ultimate consumers were deceived as a result of the use of the lists; neither the image nor the distinctiveness of the trademark for the comparable fine fragrance was impaired by the use of the lists; sales of the corresponding fine fragrance were not affected by the use of the lists. The issues for the court were whether, in the light of the judgment of the ECJ, the use of the registered marks on and in relation to the comparison lists fell within article 5(1)(a) of Directive 89/104 and whether that use did not infringe because it complied with Directive 84/450 on misleading and comparative advertising. It was not in dispute that, in the comparison lists relating to perfumes, D had used word marks registered by L and others and that use was made in respect of products which were identical with those in respect of which those marks were registered, namely perfumes. D submitted that the use of the word marks in the lists was merely descriptive. Held: (1) The decision of the ECJ was that in same mark/goods cases where the defendant claimed that his use was descriptive so as to take him outside article 5(1)(a) of the Trade Marks Directive he would only succeed if his use was ‘for purely descriptive purposes’. The word marks belonging to L and others were used in the comparison lists distributed by D not for purely descriptive purposes, but for the purpose of advertising. The ECJ had indicated that the use was within article 5(1)(a). According to the ECJ, the use went beyond ‘purely descriptive’ use because it was used for advertising, L’Oréal SA v Bellure NV (C-487/07) [2010] Bus LR 303 ECJ (1st Chamber) applied. (2) Even though the use fell within article 5(1)(a) it would not infringe if it complied with all the conditions set forth in article 3a(1) of the Comparative Advertising Directive. However, the decision of the ECJ was to the effect that saying, truthfully, that D’s product had an essential characteristic, in the instant case the smell, of the trademark owner’s product amounted to saying that the product was an ‘imitation or replica’ within paragraph (h) of article 3a(1), L’Oréal v Bellure applied. The ECJ further held that if a comparative advertisement failed to comply with paragraph (h) it also took unfair advantage of the mark within the meaning of paragraph (g). A use that was not permitted because the conditions of article 3a(1) were not complied with was regarded as unlawful by the ECJ. Failure to comply with the conditions meant the use was ‘without due cause’ and so not within the exception to infringement of article 6(1)(b) of the Trade Marks Directive because not ‘in accordance with honest practices’. (3) It was not necessary to decide whether there was also infringement of article 5(2) of the Trade Marks Directive. The ECJ had concluded that where a third party attempted, through the use of a sign similar to a mark with a reputation, to ride on the coat-tails of that mark, the advantage resulting from such use was to be considered an advantage that had been unfairly taken of the distinctive character or the repute of that mark. Thus there would also have been article 5(2) infringement. Judgment accordingly.center_img Roger Wyand QC, Tom Moody-Stuart (instructed by Field Fisher Waterhouse) for the appellants; Henry Carr QC, Jacqueline Reid (instructed by Baker & McKenzie) for the respondents.last_img read more

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Sexism is no joke

first_imgHoward Shelley (see letter) says sharia law has a role to play in dispute resolution. Nothing in law currently prevents anyone submitting to religious dispute resolution if they so choose. As he says, as long as it does not replace English law it can be used. The Jews have the Beth Din, and my own marriage was annulled religiously according to the auspices of the Roman Catholic church. However, where individuals are pressured to accept religious courts as sole arbiter with no access either practically or legally to the civil courts, then the sexism inherent in all the paternalist religions is given free rein. Mr Shelley might joke about adulteresses being stoned in the street, but I was in Iran in January on business, a wonderful country in many ways but sexist to the core, and a country where, as we know from this week’s press, his quip reflects a practical reality. Susan Singleton, Principal, Singletons, Pinner, Middlesexlast_img read more

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Why government is taking wrong approach to cutting lawyers’ jobs

first_img Government Legal Service facing deep cuts As the Gazette reported this week, the government’s spending review, to report next month, will lead to substantial cuts in the ranks of the 2,000-strong Government Legal Service.The way these cuts are to be made points to future problems in maintaining the effectiveness of the GLS, and highlights problems in the way the GLS is structured and serves government. First, there is a real issue around retaining the most skilled professionals. As is happening across the civil service, there will be many opportunities offered for voluntary redundancy. Those first in the queue tend to be the professionals who can most easily get another position elsewhere. Voluntary redundancy is the politically easy option (in both business and policy terms). But it takes away legal department heads’ ability to design the shape of team they need. That lack of control plays in to a second point. Treasury Solicitor Paul Jenkins has said in the past that his ambition is to outsource the simpler instructions that can be commoditised, retaining in-house more strategic and demanding work. The logic is compelling, and matches the plan of many of the best general counsel in the private sector. But that would point to proportionately more cuts at the bottom of the GLS pyramid than the top – and this won’t happen. For example, on the evidence so far, SCS Grade 5 (deputy directors) will be cut before lower grades, and cut in proportion. The third and most important issue surrounding indiscriminate cuts is a public interest one. A legal department focused on risk management starts not with a shopping list of the lawyers it wants, or the number it needs to lose, but the risks it needs to cover. Inadequate ‘coverage’ increases the risk of litigation, fraud, contracts that fail and so on – whereas adequate coverage can show a return on investment. These points are not special pleading for government lawyers – GLS members don’t expect exemption from public spending cuts. But it’s worrying that no one in government or Whitehall has focused on what sort of reduced GLS would be fit for purpose. As the Gazette reported yesterday, the attorney general, notional head of the GLS, is taking no lead here. And though Tsol is seen as the senior player among the legal departments serving government, it has no role here either. Related articleslast_img read more

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Redefining the defence of fair comment

first_img Lord Phillips explained that ‘the defence originated in respect of comments about work products such as: books, plays, theatrical performances, musical compositions and concerts. Comments in relation to such matters necessarily identified the work product to which they related, or they would have been meaningless… There was no doubt about the matter to which the comment related… No issue was likely to arise as to whether the comment was “fair”, for beauty is in the eye of the beholder… The only issue was malice’ (paragraph 84). The defence was later developed to also cover the conduct of individuals, where this was of public interest, which complicated the nature of the defence. Once it became possible to comment on the conduct of individuals, it was not always the case that this conduct was in the public domain and so it was necessary to indicate the facts on which the comment was being made. Lord Phillips’ judgment set out that it was ‘fallacious to suggest that readers will be able to form their own view of the validity of the criticism of a matter merely because in the past it was placed in the public domain… this will not be possible where the criticism is of an ephemeral matter such as a concert, or the single performance of a play, or a football match, all of which can give rise to general criticism that is protected by the defence of fair comment’. Phillips noted that, with millions of internet users posting derogatory comments online without detailed information about the facts that have given rise to the comments, evaluation by the reader is impossible: ‘If Lord Nicholls’ fourth proposition is to apply, the defence of fair comment will be robbed of much of its efficacy.’ Most parents have experienced the plaintive cry of ‘it’s not fair!’ hurled from the mouths of offspring made to tidy their rooms or deprived of the must-have of the moment. But the words have also recently sprung from the lips of our judiciary and government ministers, at least in terms of the name of the longstanding defence to libel proceedings, fair ­comment, leading potentially to a tidied, new, and must-have, defence for the citizen publisher and media commentator. Spiller was the first libel case to be considered by the Supreme Court and the first to reach the highest court since Jameel v Wall Street Journal [2006] UKHL 44. It considered to what extent the facts on which the comment is based are required to be set out in the publication complained of, as required by Lord Nicholls’ fourth proposition in Cheng. The claimant music band and its members had sued for defamation over a notice on the defendant agency’s website which alleged, they said, that they were ‘grossly unprofessional and untrustworthy and will not, and/or are unlikely to, honour any bookings made for them’. The defence of fair comment had failed in the lower courts because, inter alia, the alleged breaches of contract on which the defendants sought to base their comments had either taken place long before the alleged breach which had promoted the alleged comment or had not been identified at all in the article complained of. Accordingly, it did not satisfy Lord Nicholls’ fourth proposition as the reader could not make up their own mind. The points of principle that the court was asked to consider, were:Accepting the rule in Cheng in general terms, the Supreme Court unanimously held that the fourth proposition should be rewritten. Its first sentence was good, but its second sentence – ‘the reader or hearer should be in a position to judge for himself how far the comment was well founded’ – should be removed. Additional research/reporting by Natalie McEvoy, Withers SpillerHard on the heels of last year’s success for the defence in the case of British Chiropractic Association v Dr Simon Singh, came the case of Spiller v Another v Joseph & Others. whether the statement that ‘the comment must explicitly or implicitly indicate, at least in general terms, what the facts are on which the comment is being made’ is good law; whether the commentator has to know the facts at the time of publication; and the correct interpretation of section 6 of the Defamation Act 1952.center_img RequirementsLord Nicholls of Birkenhead set out the outer limits of the defence of fair comment in the Hong Kong case of Tse Wai Chun Paul v Cheng [2001] EMLR 31 CFA (HK):Importantly, the fifth proposition pushed aside the word ‘fair’ in favour of a requirement for honesty. Nicholls LJ said: ‘A comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be ­evidence, sometimes compelling ­evidence, from which lack of genuine belief in the view expressed may be inferred.’ first, the comment must be on a matter of public interest; second, the comment must be recognisable as comment, as distinct from an imputation of fact; third, the comment must be based on facts which are true or protected by privilege; fourth, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded; and fifth, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views. Defamation Act 2012?Statutory reform has been proposed by the Ministry of Justice to the law of defamation, preceded by Lord Lester of Herne Hill’s private members’ Defamation Bill. The reworking of the defence of fair comment in the draft bill is consistent with the notion that the material relied upon need not be set out in the article itself, provided the facts upon which the opinion was based existed, and they are facts upon which an ‘honest person’ could form the same view as the defendant. Lord Nicholls concluded in Spiller: ‘There is only one reform that I would seek to make by this judgment… The defence of fair comment should be renamed honest comment.’ Whether he will get his wish remains to be seen. Lord Lester proposes ‘honest opinion’ in his defamation bill; ‘honest comment’ was offered by Lord Nicholls in Spiller. One thing is for sure, there can be no further complaining that it’s not fair. It’s not – honestly. Why fair comment?The defence of fair comment provides a greater degree of latitude for the publication of personal opinions and comments, recognising the vital role played by reviewers and commentators in a society where we cannot hope to go to every restaurant, see every film, read every book or digest every political or scientific argument. The word ‘critic’ itself comes from the ancient Greek, meaning one who offers reasoned judgement or analysis, interpretation or observation. Not all observations will be positive and some can be positively vitriolic. (That said, not all will lead to litigation. The German composer Max Reger is said, as a result of a particularly critical review of one of his works, to have asserted his own right to free speech, retorting: ‘I am sitting in the smallest room of my house. I have your review in front of me. Soon it will be behind me.’) last_img read more

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Sanity clause

first_imgJames Morton’s account of troublesome litigants-in-person struck a chord with His Honour Timothy Lawrence, who wrote to tell us: ‘It reminded me of the kindly way my old partner, His Honour Judge ‘Bill’ Cox, dealt with the wild-eyed potential litigant who would come in with carrier bags full of pieces of paper and a mission to sue the Queen, the Prime Minister and probably the Lord Chancellor as well. ‘Invariably, the litigant left, never to be seen again.’ ‘So if the client will get a letter from his GP to say he is quite sane, then “we will at once issue proceedings in this most significant case”. ‘He would listen patiently for about 10 minutes, then politely intervene to say this very important piece of litigation is clearly going to overturn the whole of the government, but everybody involved will suggest the client must be quite mad. Read the original article.last_img read more

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Criminal procedure

first_img The appellant prisoner (H) appealed against the determination of his ­minimum term of imprisonment ­following his transfer from prison in the Republic of Ireland to a prison in the UK. H had been convicted of murder in the Republic of Ireland and was sentenced to ‘imprisonment for life’ under section 2 of the Criminal Justice Act 1990 (Ireland). Early release from such a sentence was not set, but later authorised by the Irish minister of justice. Before a parole review took place, H applied and consented to be transferred to the UK to serve the remainder of his sentence in an English prison under the Repatriation of Prisoners Act 1984. His case was referred to the High Court under section 273(1) of the Criminal Justice Act 2003 for the making of an appropriate sentence. Applying the decision in Re Khan (Setting of Minimum Term), [2006] EWHC 2826 (QB), the judge determined that the circumstances of H’s offending would have provided a starting point of a term of imprisonment of 30 years, but that such a sentence would exceed the period which H might reasonably have expected to serve in prison in the Republic of Ireland and that the appropriate term of imprisonment should be 18 years. The issues for determination were whether: (i) the Court of Appeal had jurisdiction to hear appeals by transferred life prisoners against the setting of a minimum term by the High Court; and (ii) the imposition of a minimum term of 18 years’ imprisonment was excessive. Held: (1) Although section 3 of the 1984 act did not provide a right of appeal against a life sentence provision in a warrant, for all other purposes that provision should be treated as of the same effect as if the sentence of life imprisonment had been made by a court in England and Wales. Had such an order been made, a minimum term would have been set by the High Court and H would have enjoyed a right of appeal under section 9 of the Criminal Appeal Act 1968. H enjoyed no right of appeal against the sentence of life imprisonment but, by virtue of section 274 of the 2003 act, he was entitled to appeal the minimum term set by the High Court. Since the sentence of life imprisonment was to be treated for all purposes, save an appeal against it, as if it were an order made by a trial judge in England and Wales, one purpose for which it had to be so treated was the power of the Court of Appeal to quash and substitute a minimum term imposed after a decision on referral under section 273 of the 2003 act. The right of appeal against the minimum term given by section 274 of the 2003 act would, in the absence of express provision, have been implied from the terms of section 3(4) of the 1984 act (see paragraph 39 of judgment). (2) Article 10 of the Convention on the Transfer of Sentenced Persons 1983 (Council of Europe) bound the UK to the legal nature and duration of the sentence determined by the Republic of Ireland. Accordingly, the sentence in the UK remained one of life imprisonment, R v Secretary of State for the Home Department Ex p Read (Gary John) [1989] AC 1014 HL applied. It was not, therefore, the function of the High Court to simply convert H’s sentence as though it had been imposed in England and Wales, but to adapt his sentence for the purpose of its enforcement in England and Wales. The task of the administering state when adapting a sentence was, so far as possible, to bring correspondence between the ‘punishment’ which would have been imposed in the sentencing state and the remainder of the sentence to be served in the administering state. That required a reasoned judgment as to the likely duration of the custodial element of the sentence had the sentence been served in the sentencing state. To that end, article 5 of the European Convention on Human Rights 1950 recognised that a transferred prisoner might, in consequence of different penal systems between member states, serve a longer period in custody in the administering state than he would if he had remained in the sentencing state. In the absence of reliable information from the Irish Ministry of Justice as to the way in which its minister would have exercised his discretion to permit release, the judge had no alternative but simply to apply section 269 of schedule 21 to 22 to the 2003 act to his assessment of the minimum term. Had that been the situation in the instant case, it would have led to the imposition of a minimum term of approximately 18 years imprisonment (paragraphs 42, 46-49, 51-53). (3) (Obiter) Had it been necessary, the court would have interpreted section 274(3) and (5) of the 2003 act as meaning that the court was clothed with the same jurisdiction it enjoyed under sections 9 and 11 of the 1968 act to appeal against sentence to the Court of Appeal (paragraph 37). (4) (Obiter) On the basis that the court’s interpretation of section 3(4) of the 1984 act was correct, then there was no reason in principle why the provisions of schedule 22 to the 2003 act should not apply to the case of a transferred prisoner referred to the High Court under section 273 of the 2003 act, Khan considered ­(paragraph 40). Appeal dismissed. Declan O’Callaghan (instructed by Russell-Cooke) for the appellant; John RWD Jones for advocate to the court. R v Norman Hull: CA (Crim Div) (Lord Justice Pitchford, Mr Justice Wilkie, Judge Nicholas Cooke QC): 19 May 2011center_img Sentencing – Jurisdiction – Life prisoners – Mandatory life imprisonmentlast_img read more

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The press should take more care not to prejudice trials

first_imgIf you were searching for a flat in Bristol and found out the landlord was Christopher Jefferies, would you still sign the contract? If you were walking your kids to school and he was approaching, would you cross the road to avoid him? I can’t begin to imagine what life is like for the man whose character was ripped to shreds by tabloid newspapers after he was arrested for the murder of Bristol woman Jo Yeates. Yet I imagine it’s a mixture of sympathetic nods and suspicious glances – the knowledge that he’s an innocent man but a lingering impression that he is peculiar and somehow frightening. Let’s make this absolutely clear: Christopher Jefferies is an entirely innocent man. At worst the retired teacher has an eccentric haircut, doesn’t look good in photographs and has the extreme misfortune to live close to a murder victim. He deserves every penny of the reported six-figure sum agreed today with eight separate newspapers, after what his solicitor described as a ‘witch-hunt conducted by the worst elements of the British tabloid media’ – and after recent events, that’s a bold claim. Needless to say, if you happened to check for an apology – or even a mention of the settlement – on the front pages of websites of the Sun, Daily Mirror and Mail at midday, you will have wasted your time, although you will have seen pictures of a Hollyoaks actress eating (yes, that really is the entire story) and Imogen Thomas being attacked with a water bomb. As well as the defamation cases, the Sun and Daily Mirror were found to have broken contempt of court laws by the High Court. The judges warned that any potential defence witnesses would have been so convinced of his guilt by the reports that they may not have come forward. The families of murder victims will never get the justice they deserve if defendant lawyers can prove a jury has been prejudiced. Yet some tabloid newspapers seem to treat contempt of court like it’s a relic of the 16th century, one that you’ll find in history books but of no importance in the modern world. The public and politicians are in no mood for leniency towards the media, and cases like the unfortunate Jefferies will only offer more ammunition for the argument to limit press freedom.last_img read more

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Criminal round-up

first_img Recent guidance issued by the LSC has been justified by a decision of the High Court. In Lord Chancellor v McLarty & Co Solicitors [2011] EWHC 3185 (QB), the court held that if interviews were electronically recorded they could only count towards the page count to the extent that the interviews were transcribed by the Crown, and only to that extent could special preparation be claimed for listening to the disc if there was no transcript. The LSC has summarised the position as follows: Solicitors are being placed under more pressure by the greater use of case management powers at the first hearing in the magistrates’ court, and yet they must ensure that their client’s privilege against self-incrimination is honoured by the court in accordance with the Criminal Procedure Rules. Harassment A ‘trial’ exists, however short it may be, after the jury is sworn, unless there is no meaningful trial because there has been no opening for instance on a guilty plea. However, a ‘trial’ may begin, notwithstanding that a jury has not yet been sworn, if submissions have begun in a continuous process resulting in the empanelling of the jury. The undertaking of substantial elements of case management in such a continuous process may result in a trial fee being payable. See LC v Ian Henery Solicitors Ltd [2011] EWHC 3246 (QB). Number of cases Conduct that is targeted at an ­individual; That conduct must be calculated to produce alarm or distress; The conduct must be oppressive and unreasonable; Provocation may be relevant both to reasonableness and to causation; and The mental element is that the defendant knew, or ought to have known, that the conduct would cause the complainant to fear violence. No magistrates’ court may grant bail to a youth charged with murder. However, having refused bail, the court must still comply with section 23 of the Children and Young Persons Act 1969 and determine the nature of the custodial remand. That aspect cannot be delayed to the first hearing in the Crown court (R (A) v Lewisham Youth Court [2011] EWHC 1193 (Admin)). When a youth is committed for trial with an adult and the adult then pleads guilty, there is (to the regret of the court) no power to remit to the youth court for trial (R (W) v Leeds Crown Court [2011] EWHC 2326 (Admin)), though it may be possible to delay arraignment of the youth so that the proceedings can be discontinued and recommenced in the lower court. In fixed-fee cases, such as committals for sentence, the test is how many sets of proceedings there are. In R v Schilling (SCCO reference 22/11), two allegations were committed for sentence on the same day but amounted to two sets of proceedings. They were charged on separate occasions. There were two prosecution files and sets of disclosure; two applications for legal aid; different magistrates’ court and Crown court numbers; and, critically, two certificates of committal. This doubled the fee allowed by the Legal Services Commission. In graduated-fee cases the test is how many indictments there are before the court. In R v Otote (SCCO reference 08/11), three sets of allegations came before the court for guilty plea on different days. All resulted in a remand to the same day for medical reports to be prepared. A mental health disposal was then imposed on a single occasion. However, notwithstanding some similarity between the charges, there had never been any joinder and, though sentenced on the same day, three graduated fees were payable. Wasted costs Trials Claim pages of prosecution evidence (PPE) when material that had been in paper form is converted into electronic format by the Crown; Claim special preparation (reasonable time at hourly rates) if documentary evidence/exhibits has only ever existed in electronic format. The judge in McLarty confirmed obiter that enhancement is not available for such claims; and No additional claim may be made if other non-documentary evidence or ‘unused’ material has only ever existed in electronic format. Page count The provisions of section 4 of the Protection from Harassment Act 1997 have come under critical observation in a series of cases, and requirements for harassment and oppression, additional to those in the statute, have been read in. This creates a group of cases involving people in relationships which will require ­particular care as to whether the ­proceedings should be brought and as to the proper plea. In R v Curtis [2010] EWCA Crim 123, the court ‘could not conclude’ that in a volatile relationship six incidents over a nine-month period could be classed as a course of conduct amounting to harassment. It noted that interspersed with those incidents were considerable periods of affectionate life together. In R v Widdows [2011] EWCA Crim 1500, the court emphasised that, when bringing a charge under section 4, the prosecution and the court should have in mind that the concept of harassment is at the core of the 1997 act, though the word does not appear in the section. Harassment is designed to include stalkers, racial abusers, disruptive neighbours, bullying at work and so forth. The section is not normally appropriate for use as a means of criminalising conduct, not charged as violence, during incidents in a long and predominantly affectionate relationship in which both parties persisted and wanted to continue. The section was reviewed in R v Haque [2011] EWCA Crim 1871 as requiring: Crown court costs R v Solicitors Reeves & Co [2011] EWCA Crim 819 may be particularly important in defeating orders for wasted costs. The court held that it was perfectly proper, on the facts of this case, for the defence not to volunteer emails (which on disclosure led the Crown to offer no further evidence) because the defence did not believe the prosecution would, in any event, be able to prove its case. While both litigators’ and advocates’ graduated fees can be calculated by using computer programs, it is critical that the correct data is entered. A number of crucial areas have recently been examined by the courts. Anthony Edwards, TV Edwardslast_img read more

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Pension reforms

first_img Employer Employee (net) Employee (tax relief) Total The changes will be phased-in over a four-year period with each employer having a ‘staging date’ for the implementation of enrolment. Inevitably, the impact to employers will be additional costs in terms of contributions and administration. Employers can elect to commence enrolment earlier than their staging date. However, this will result in earlier increased costs and, therefore, it is uncertain how many employers, without an existing eligible scheme, would opt to do this. The staging date for employers is determined by the number of employees within the company. In the first year (to 30 September 2013), only employers with 1,250+ employees will be obligated to start a workplace scheme and, throughout this first year, there is a further sliding scale to determine the month in which employers will need to enrol their employees. From November 2013 there are further phasing-in criteria and by February 2016 even the smallest employers will need to have enrolled their employees. Employees, although eligible to opt out of the scheme, will also be obligated to make a minimum contribution and, while they will be entitled to tax relief on contributions made, this could also result in increased financial pressures for employees. In addition to the phasing-in of enrolment, the minimum employer/employee contribution rates will also be introduced on a sliding scale (as illustrated below), resulting in variable contributions each year. Recap on pension reforms From October 2017 thereafter 3.0% 4.0% 1.0% 8.0% Gazette pensions survey Employers must enrol all eligible employees and provide them with a minimum level of contributions. Eligible employees include those working in the UK who:Employers can choose to implement workplace pension schemes using a combination of (i) new, existing, or amended qualifying schemes and/or (ii) a National Employment Savings Trusts (‘NEST’) – a government-operated scheme established for the purpose of workplace pensions (previously called Personal Accounts). From October 2012 to September 2016 1.0% 0.8% 0.2% 2.0% These contribution percentages will be applied to an employee’s gross salary (including overtime & bonuses) falling between specified earnings bands, currently £5,715pa and £38,185pa. Therefore, from October 2017, the minimum contributions an employee could have is £2,598pa (assuming the minimum 8% total contribution rate). Retirement planning is set for radical change this year – we want to hear about your firm’s pensions policy. Take the survey. Summarycenter_img Impact to claims The phasing-in period From October 2016 to September 2017 2.0% 2.4% 0.6% 5.0% are not already a member of a workplace pension scheme; are at least 22 years old; are under the state retirement age; and earn more than the minimum earnings threshold (likely to be £7,475pa in line with the current personal allowance). Due to the phasing-in rules, inevitably the calculation of lost benefits from workplace pension schemes will be an intricate process in the early years. The rules will be of concern to those both preparing and reviewing employee workplace pension claims to avoid misstatement of losses. Furthermore, careful consideration will also need to be given to the interaction between the loss of pension benefits and any loss of earnings claimed. However, once through the phasing-in stage the calculation/review process should become more straightforward – until the next round of reforms anyway. From October 2012 all employers will be obligated to provide employees with a workplace pension – part of the government’s drive to ensure more people are prepared financially for their retirement. Much has been written about the pension reforms from an employment/business perspective, but far less has been said about the impact on personal injury and fatal accident claims. There will almost certainly be an increase in the number of pension claims being brought. Indeed some insurers/lawyers are already seeing pension claims being made in anticipation of the forthcoming reforms. Before we look at the impact on claims however, let us first remind ourselves how the pension reforms work. In preparing or reviewing pensions aspects of personal injury and fatal accident claims, there will be various issues to consider and particular care needs to be taken during the four-year start-up phase to ensure claims are not overstated. Issues to consider include: 1. Phasing-in of enrolment The size of the company a claimant works for will need to be considered to determine when they would be eligible to join the workplace pension scheme and, therefore, when their pension benefits would have accumulated from. For example, where a claimant works for a company with 50-89 employees, their loss of pension should not be assessed before 1 July 2014, this being the staging date for companies with that number of employees. 2. Increasing contribution percentages Until September 2016 the minimum total contribution will be 2%. Therefore, for an individual on a salary of £20,000pa, total contributions would amount to £286pa. However, by October 2017 contributions would be based on an 8% minimum and amount to £1,143pa. Therefore, expected pension contributions need to be calculated with reference to the appropriate rates for each period to avoid misstatement. 3. Actual pension contributions If a claimant is able to undertake alternative or reduced work following the incident, they may still be entitled to join a workplace pension scheme. This being the case, a claimant’s actual contributions will need to be accounted for and must reflect their actual salary, size of post-incident employer and the date of their actual enrolment into the scheme. 4. Which loss methodology to adopt? A further issue to consider is which calculation methodology to adopt either (i) a pension projection approach, based on an estimate of future benefits payable on retirement, or (ii) the more straight forward contributions approach, where there is no separate pension loss but instead expected pension contributions are reimbursed as part of a claimant’s loss of earnings claim which can then be invested as they choose. The contributions approach does limit the speculation of calculating future pension fund performance. Therefore, given the current economic climate and poor pension fund performance, this approach may be preferable for claimants retiring in the short/medium term. However, if a claimant’s expected retirement is several years into the future, a pension projection could provide a more appropriate figure on which to calculate lost pension benefits. In addition, depending on the methodology adopted, any loss of earnings claim may also be impacted and would determine how employee/employer pension contributions should be treated. 5. Impact to future remuneration The introduction of workplace pension schemes will certainly result in an increased financial burden for employers. With this in mind, an employee’s expected salary may well be influenced by employers offsetting their pension contribution obligations, for example, reduced annual pay rises, a pay freeze or, perhaps controversially, an allocation of existing salary. All of these factors need to be considered in preparing and evaluating employee loss of pension/earnings claims. Amanda Fyffe is director of RGL London, Caroline Bedford is manager of RGL Manchesterlast_img read more

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