Archive for July, 2010

Payments into the court

Saturday, July 24th, 2010

Circumstances when the court may order a payment into court:

When the court has ordered security for costs to be paid;
As a condition of granting some relief;
As a sanction for a party failing to comply with a rule, practice direction or court order; and
When the court deems that an interim payment should be made towards a claim.

Payment into court of security for costs
Payment into court is one means of providing security for costs when that has been ordered by a court.

Payment into court as a condition
An order for payment into court as a condition is common when applications for summary judgment or strike out are dismissed but the court still has doubts about the respondent’s position. The court, after hearing the application, accepts that it is arguable that the claim or defence may succeed but considers that it is improbable that it will do so.

The respondent will be ordered to make a payment into court as a condition of being granted relief from the strike out or summary judgment order sought.

Payment into court as a sanction
The court has power to order sanctions for non-compliance with court orders, rules and practice directions.

Interim payments
An interim payment is a payment on account of any damages, debt or other sum which a defendant may be held liable to pay to or for the benefit of a claimant. The court may only make an order for an interim payment where certain conditions are satisfied.


Defamation – Who can sue?

Saturday, July 24th, 2010

When it comes to taking action against those who have committed a defamation, everyone who has participated in or is responsible for the publication can be sued.

An example of this is if a freelance journalist wrote an article which is published in a newspaper and then found to be defamatory the following people may potentially be sued:

1. The freelance journalist
2. The editor
3. The publisher
4. The printer
5. The retailers who sell the newspaper

In practice however one action would be brought against the publisher, the editor and the journalist. Whilst it is unusual for an action to be brought against the printers or distributors it can happen (see John Major v Scallywag Magazine).

It is also important to remember that every time the defamatory statement is repeated, it gives rise to a fresh cause of action and each person that repeats it will be liable as though they were the original authors.


Original Copyright

Saturday, July 24th, 2010

One of the main aspects of copyright protection is to establish that the works (over which copyright protection is being claimed) is original.

So when is a work original?
In order for a work to be original the author must have exercised the requisite labour, skill and effort in creating that piece of work.

There is not however a definite term or measurement for the above. Instead much will depend on the facts of the case. The bar for originality will also be raised or lowered depending on the types of works in question. I will now deal with both ‘new works’ & ‘derivative works’.

New Works
Generally speaking a new work requires a low degree of labour, skill and effort. In the past the courts have ruled that a simple drawing of a hand or screw has copyright afforded to it.

Derivative Works
Derivative works are those works which are based upon pre-existing works.
In order for the works to be deemed original the following must be applicable:

The labour must be of the right kind : this means that some degree of individuality must have been exercised. A simple tracing of a pre-existing work (whilst labour some) is not original and therefore falls foul of this requirement.

The effort must bring about a material change in the works: this means that the author of the new works must impose on the pre-existing works some form of extra character and material change. The new works must be differentiated and distinct from the original works.


Responsibilities of Landlords and Tenants

Saturday, July 24th, 2010

When acquire a commercial leasehold property, a legally binding contract known as a lease with the owner of the commercial property will be entered into.

The parties under commercial lease law are referred to as the landlord and the tenant. The lease lays down the responsibilities and obligations of both parties and these are known as covenants.

Common tenant covenants include paying service charge, keeping the interior of the property in good repair and not altering the structure. Common landlord covenants include insuring the property and affording the tenant quiet enjoyment of the property without interruption.

It is important for both parties to read the lease with extreme care because once it is signed the respective parties are bound under commercial lease law by all the clauses.

When taking on a commercial property lease it is important to understand the responsibilities for the repair and maintenance of the building that is being rented.

Tenants are typically responsible for internal repairs and maintenance. In some cases however they will also be responsible for external maintenance. This is more likely if there is a sole occupant of a building.

In multi-occupancy premises the landlord is more likely to carry out external repairs and maintain common parts. Ultimately, however, the division of maintenance responsibilities will be determined by what’s agreed in the lease. As a result it is important to check a lease carefully before it is signed.

It is particularly important, before signing a lease to check what the liability is with regard to repairs needing to be done.

When signing a lease it is important to be clear on the repairs the landlord may require a tenant to pay for at the end of the agreement. This is known as dilapidations. This can often be a problem area.

For example a tenant may be responsible for reinstating the premises to its original condition. As a result it is important to get professional help from a chartered surveyor, who will record the state of the premises when the lease was taken on to prevent the landlord from making unjustified demands later on.


Business Partnership Dissolution

Saturday, July 24th, 2010

Dissolution of a partnership occurs on the following events:

Notice (PA 1890 S26 & S32) – Notice can be given by any partner to the others. No reason need be given and the notice can have immediate effect, in fact it does not neccessarily have to even be in writing. Of course any well written partnership agreement will have a clause that supersedes these sections.

Expiry of a Fixed Term (PA 1890 S27 & S32) – Where the partners have agreed a fixed term to carry on as a partnership then on expiry of this term the partnership will be dissolved unless their agreement provides for it’s continuation (S32). If however the partners carry on after the expiry of the fixed term then they will be deemed to be carrying on business as before however the business will now be a partnership at will (S27).

Charging Order over Partner’s Assets (PA 1890 S33) – Where a creditor obtains judgement over a partner he may use S23 to enforce the judgement. Basically S23 allows the creditor to place a charge over partnership assets, the creditor cannot make a direct claim over any of the partnership assets. At this stage the other partners are entitled to pay off the creditor and look to the partner for the money otherwise the creditor may obtain an order from the court for the sale of the partner’s share in the assets. Of course such a sale will be most disatisfactory to the other partners as a third party may end up owning a part of a partnership asset as such the other partners have the right to give notice to dissolve the partnership.

Death of Bankruptcy (PA 1890 S33) – Death or bankruptcy will automatically terminate the partnership so that the PR’s of the deceased can collect for the estate the amount to which the former partner was entitled.

Illegality (PA 1890 S34) – Where it is or it becomes illegal to carry on the business of the partnership then the partnership will dissolve.

Court Order for Dissolution (PA 1890 S35) – The court can order dissolution of a partnership on various grounds including where it is ‘just and equitable’ to do so.


Dismissal – An Employers Guide

Saturday, July 24th, 2010

Employers must be cautious when taking the decision to dismiss an employee as such action may leave the employer open to wrongful or unfair dismissal claims.

There must be a fair reason for the dismissal. The dismissal can only be for a fair reason if:
– it relates to the employee’s conduct;
– it relates to the employee’s capability or qualifications;
– it is because of redundancy;
-it is because the employee has reached the normal retirement age;
– continuing to employ the employee would be illegal, e.g. because the employee is a van driver and he has just received a driving ban; or
-it is for some other substantial reason. This is understood to be a fair reason that does not fall under the other categories.

A dismissal for any other reason would be unfair.

Generally, employees must have been employed for one year before they can bring a claim for unfair dismissal. However, certain types of dismissals are deemed automatically unfair and employees are protected as soon as they start work. These include dismissals for reasons connected to pregnancy, parental leave, requests for flexible working and whistleblowing.

An employer may still be held liable even if there is a fair reason for the dismissal if it does not follow a fair procedure when dismissing the employee. The employer should consult the ACAS Code of Practice on Disciplinary and Grievance Procedures.

The employer must also show that it has acted reasonably in treating one of the fair reasons as a ground for the employee’s dismissal. For example, if the employee is found to be incapable of carrying out the job, the employer should give the employee timeto improve and may even be required to offer the employee appropriate training.

The employer should also ensure that it gives the employee his or her full notice period or pays the employee a payment in lieu of their notice period. An employer’s failure to give adequate notice or payment in lieu before dismissal is likely to result in a wrongful dismissal claim by the employee.


Dismissal – Unfair & Constructive

Saturday, July 24th, 2010

In order to bring a claim for unfair dismissal, an employee must have been dismissed.

There will be a dismissal if:

The employer terminates the employment, either summarily (that is, with immediate effect) or on notice.

The employee resigns (with or without notice) and can establish that they were constructively dismissed. This requires the employee to show that:

There was a fundamental breach of contract by the employer.

They resigned because of that breach.

They did not delay before resigning (as a delay can mean that the employee has affirmed the contract and lost their right to claim constructive dismissal).

A constructive dismissal is not necessarily an unfair dismissal. The tribunal will look at the employer’s conduct and decide whether it acted fairly.

The employer does not renew a fixed-term contract on the expiry of the fixed term.

The employee retires.

The employee will not have been dismissed if their employment terminates:

Following the employee’s resignation unless of course there is a constructive dismissal. There will be a dismissal if the employee has given notice and the employer dismisses them during the notice period.

By agreement of the parties. This is unlikely to include voluntary redundancies provided there is a true redundancy situation but may include early retirement.

By operation of law, for example:

Because the contract has been frustrated by an unforeseeable event that makes performance impossible or unlawful or radically changes the contract. In practice, it is difficult to establish that a contract has been frustrated.

Because of a supervening event. This could include the death of the employee or an individual employer, the dissolution or major reconstruction of the employing partnership and certain insolvency situations.


Defamation, Libel and Slander

Saturday, July 24th, 2010

Defamation is a tort which means that if a case goes to trial there will usually be a jury.

Libel is one type of defamation. The main aspects of libel are as follows:
1. Libel is defamation in permanent form for example in newspapers, magazines and book.
2. Libel can also include words spoken in television, radio and threatre and words in emails.
3. Libel can also be a criminal offence, although it usually has to be extremely serious for this to happen.

A claimant in a libel action does not need to show that he has suffered any damage. If he does however he is more likely to suffer higher damages by the court.

What is Slander?
Slander is defamation that occurs by the spoken words or some other transitory form.
Unlike libel, slander usually requires proof of special damage (usually in the form of loss of money) before an action can be brought.

There are some circumstances whereby no special damages need be shown. These include allegations relating to:

1. A person professional ability
2. Unchasity
3. A criminal offence punishable by criminal imprisonment
4. A disease.


Compromise Agreements

Saturday, July 24th, 2010

This article sets out the use of a compromise agreement from the perspective of an employer and employee.

If you are an employer and have decided to let a member of staff leave your organisation you must be very careful not to contravene any employment laws relating to dismissal.

One way of alleviating any concern is to agree a compromise or a ‘settlement’ with your employee. Once agreed it is vital that you have this arrangement expressly detailed in a contract – also known as a Compromise Agreement.

This document will set out exactly what has been agreed. It will also bar your former employee from taking any legal action against you in relation to their dismissal.

If you are an employee and have been offered a sum of monies before leaving your employment you will be asked to sign a compromise agreement. This will set out what you are going to be paid and what rights you will be forfeiting upon receipt of these monies.

As part of the legal process you will be asked by the Solicitor for your employer to have the agreement checked by an independent Solicitor so that you can be given advice on the suitability of the agreement.

It is vital that this is done as any issues between you and your employer must be dealt with at this stage. It is important that the agreement is not against your best interests and that you are getting what you deserve.

In most cases the employer will pay your legal fees.


Judgement in Default

Saturday, July 24th, 2010

Failure to file an acknowledgment or a defence within the time limits laid down in the CPR may result under Part 12 in the claimant entering judgment in default, that is, judgment without a trial of the claim.

If the Part 8 procedure is being used, Part 12 does not apply (r. 8.1(5)), but a defendant who fails to file an acknowledgment will be unable to take any active part in the hearing without the court’s permission (rule. 8.4).

There are two mechanisms under the rules for entering default judgment, which apply to different types of claim:

(a) A simple request-for-judgment procedure under Part 12 is available in money claims (r. 12.4(1) ), which include claims for specified sums, claims for unquantified damages and some other types of claim. Under this procedure, judgment is entered over the counter on filing a request for default judgment, without any consideration of the merits of the claim.

(b) In a claim for a remedy other than a money claim, in a claim only for costs (other than fixed costs) and in certain other cases set out in r. 12.10, an application for judgment must be made using the Part 23 procedure (see chapter 32). On an application for the entry of a default judgment there will be a hearing and the court will give such judgment as it appears to the court that the claimant is entitled to on his statement of case (r. 12.11(1) ). In this case, then, the court will, in a limited way, consider the merits of the claim. In the overwhelming majority of cases, default judgment is entered simply upon filing a request in the appropriate form.