Blog 2016-03-17T12:14:19+00:00
Not so new right for workers' rights

Teresa May’s new rights for workers and, in particular, a year’s leave to look after a dependant relative are not as radical as she may think.  Employees are already allowed to take a reasonable amount of time off (unpaid) to care for dependants and can also request flexible working for this purpose.  Provided employees comply with certain notification requirements, they have the right not to suffer any detriment if the flexible working request is refused or for taking emergency time off.  The proposals are therefore an extension of existing rights rather than new rights. 

In any event, it will be difficult to enforce such rights if the level of Tribunal fees continues (£1,200 in total) and these are unlikely to change if the Conservative party wins the election.   Regardless of political intentions, without providing a simpler and cheaper enforcement mechanism, most of these new rights could be worthless.

Workers will be given a legal right to take a year's leave from their job to care for elderly relatives under a Conservative Government, Theresa May will announce on Monday.

The Prime Minister will unveil plans for the "greatest expansion of workers rights" by any Conservative Government in history as she seeks to make inroads into Labour's heartlands.
Finance Bill 2017 creates more uncertainty

It is very surprising that after months of consultations and deliberations the UK Government has announced it is dropping a number of sections to the Finance Bill that were going to be introduced from 6 April 2017. 

It is expected that these clauses will be included in a further Finance Bill to be passed after the UK general election on 8 June. 

The reason for the delay is to allow the provisions to be discussed with the opposition. Further the government may also have decided that some measures, such as those relating to the taxation of non-domiciled individuals, are simply too complicated to include without scrutiny or possibility of amendment.

Therefore for the time being the UK government is not introducing changes to:

  • Treat non-domiciled individuals as deemed UK domiciled for all tax purposes once they have been UK resident for 15 out of the previous 20 tax years; and
  • Bring all UK residential property held through offshore companies and trusts (including certain loans to fund their purchase and assets used as security for those loans) within the scope of UK inheritance tax;

However, it has not been possible to make all of these changes in time and consequently, the government has taken the view to defer publication of the provisions affected.
Probate fee rise scrapped (for now)

The UK government had previously proposed that as of 1 May 2017, the costs of applying for probate would change from a flat fee to a percentage charge of the value of the estate.  The proposals have now been dropped as the government gears up for election on 8 June, and may even be dropped altogether after the outcome of the election.

The Ministry of Justice has announced that there is not enough time for the relevant statutory instrument to be completed before the election. This creates uncertainty as it is not clear whether the proposals will go ahead even if Theresa May wins.

However, some political sources have suggested that due to the unpopular nature of the proposals, which some have claimed amount to a ‘wealth tax’, any government elected on 8 June will have to think carefully before reintroducing the changes.  Moreover, there is an argument that the justice secretary, Liz Truss, would not have had the legal authority to introduce the changes in any event. If the justice secretary had introduced the proposals by way of a statutory instrument as planned, this would likely have been opposed as an ‘unexpected use of the power’ conferred on her.

The current cost of applying for probate is a flat fee of £155 for applicant solicitors and £215 for applicant family or friends. The proposals would have exempted estates worth up to £50,000 from paying any probate fees, but the following tiered fee structure would apply to other estates:

Estate sizeProbate fee
up to £50,000No fee as probate not required
£50,000 to £300,000£300
£300,000 to £500,000£1,000
£500,000 to £1m£4,000
£1m to £1.6m£8,000
£1.6m to £2m£12,000

It was estimated that the changes would have raised income of £300 million for the Ministry of Justice. Therefore, even if the proposals are scrapped altogether in the wake of the election, it is likely that the Ministry of Justice will be looking at alternative sources of revenue. 

There appears to be no U-turn so far on the reduction in fees for registering a Lasting Power of Attorney. The fees were cut from £110 to £82 on 1 April 2017 in a bid to encourage more people to put the documents in place. A Lasting Power of Attorney is a document put in place to allow the ‘donor’ to appoint ‘attorney’ to act on their behalf in the event that they lose the ability to make their own decisions e.g. due to an illness or accident.

The controversial Ministry of Justice scheme to raise £300m a year extra on the fees by charging up to £20,000 for large estates was authorised by the justice secretary, Liz Truss.
Banking on Anonymity

Before June 2013, any whistleblowing disclosure had to be made in good faith under UK law. This requirement was removed in June 2013 although an individual’s motives can be taken into account by a tribunal when assessing compensation.

If the anonymous letters sent to the Barclays Board were, as reported, ‘very simple, very crude and very malicious’ concerning issues of a personal nature against Mr Main, it suggests the issues were not related to financial misconduct, justifying a whistleblowing enquiry, but were related to someone with a personal grudge against Jes Staley. 

Given the outcome for Mr Staley ie a written reprimand, substantially reduced bonus and ongoing enquires from UK and US regulators plus widespread publicity, the anonymous whistleblower  has certainly achieved his (or her) objective. 

Someone who is motivated by malice should not have the protection of anonymity which is intended for genuine whistleblowers.   There has to be a balance, but given the current climate, expect similar cases to follow.

They were “very simple, very crude”, and “very malicious”, a source close to the matter said, and contained no new information. Nevertheless, Barclays’ compliance team treated them as a whistleblowing matter and set about investigating the letters.

The rules governing whistleblowers stipulate that if an informer asks for anonymity a firm must respect the request. But Barclays’ chairman, John McFarlane, said today that Staley regarded the letters as “an unfair attack” after he received a copy of one, and instructed the bank’s information security team to unmask their author.
Forcing change by 'naming and shaming' - gender pay gap reporting

The government now sees equal pay as a vote winner.  The requirement for large companies (250+ staff) to publish their gender pay gap figures is not new.  It was first proposed, but not implemented, by the Labour government under the Equality Act 2010 and rejected by the Tories during the coalition government, preferring a voluntary approach.  This resulted in minimal responses.  However, the majority of UK employers are small to medium sized companies, so the impact of these regulations will be limited. 

Publication of gender pay gap information for large companies is now required by April 2018. There are no financial penalties for failing to comply and any enforcement action by the ECHR is likely to be minimal. It is the “naming and shaming” from government websites or league tables which will be most damaging for a company if their figures do not look good.

Some companies may well have valid reasons for gender pay differences.  Whilst explanations can be provided with the published information, these may not be sufficient to counter the reputational damage caused by negative publicity.

The government hopes that having given companies 12 months  to prepare for publication, that will allow them sufficient time to address any gender pay disparity and implement change.  It is already starting to take effect. 

However, if the government is serious about promoting gender pay equality, it should consider reinstating equal pay questionnaires which were abolished during the coalition government.  Without a statutory process, it is far harder for women (and men) to establish if their co-workers are being paid more than them for the same work.  Gender pay differences will not be resolved simply by “naming and shaming” large companies. 

Thousands of employers will begin to record their gender pay gap figures for the first time and will have to publish their first figures before April next year.

The rules – which will be enforced by the Equality and Human Rights Commission – require companies who employ more than 250 people to provide data about their pay gap, the proportion of male and female employees in different pay bands, their gender bonus gap, and a breakdown of how many women and men get a bonus. The legislation will affect around 9,000 companies, who collectively employing more than 15 million people.

Tribunal delivers new blow to courier companies

Despite another successful challenge to self-employed status against a courier company, with two more likely to follow, the legal position has not changed.  Tribunal decisions are not binding, Uber has appealed a similar decision and the courier companies will probably follow.  The appeal process can be prolonged for many years.

What will make a difference is the employment practices review currently being undertaken by Matthew Taylor for the government, due to be published in June.  Mr Taylor has recently stated that  “workers’ rights should be overhauled to reflect the gig economy realties and if a company wants control over its workers then it should respect their rights and entitlements.”

The problem is that the self-employed workers have benefitted from lower taxation and NI contributions.  The test which HMRC applies to determine employed/self-employment status is different to that which applies under employment law.  Under HMRC’s test individuals are either  employed or self-employed.  HMRC does not recognise the concept of workers.  Employment law applies a test of control: the more autonomous a person is the more the likely they are to be self-employed.  Workers under employment legislation have some autonomy and rights such as the national minimum/living wage and holiday pay, but not the full rights of employees (who have no autonomy). 

If the law is changed so that gig economy workers and similar become entitled to holiday pay and the national minimum/living wage, then it is likely their NI and tax contributions would increase too.  Price increases for customers will, doubtless, follow. 

Boxer’s case is the latest in a string of tribunals against gig economy employers including the taxi hailing service Uber, and the second of four relating to couriers’ employment status backed by the Independent Workers Union of Great Britain (IWGB). The next case, against eCourier, is due to be heard in May. The fourth is against Addison Lee.
Headscarf ban: A cross for all employees to bear

A court ruling from the ECJ has held that employers are able to ban their employees from wearing headscarves, but only if there is a wider policy preventing all workers from the visible wearing of any political, philosophical or religious signs.

The ruling is not a green light for employers to prevent only a headscarf from being worn. Such action would be discriminatory even if the policy is in response to requests from their customers. 

To be legitimate the policy must apply (and be applied) universally to prevent overt expression of any employees religious beliefs. That includes preventing the wearing turbans, visible crosses and any other religious dress or icon as well as headscarves.

As the policy will also interfere with the employees Right to Religion (Article 9 of the European Convention on Human Rights) to be lawful, the employer will also need to consider the proportionality of the effect of policy against the aims it is trying to achieve. There were a number of cases brought to the European Court of Human Rights in 2013 regarding this, including the case of Ms Eweida. In that case the ECHR found that her Right to Religion had been infringed when British Airways relied on their neutral company image to require her to stop wearing a cross on her necklace. In particular it was held that the discreet cross would not detract from BA's corporate image or uniform. 

With an increasingly secular society such policies may become more prevalent, but employers wishing to adopt policies enforcing a neutral corporate images have a tricky balancing act to play. Would the requirement that they have to apply the policy universally require them to take action against an employee wearing a visible cross, even if it is only discrete?

Employers are entitled to ban workers from the "visible wearing of any political, philosophical or religious sign" including headscarves, Europe's top court has ruled.

But the ban must be based on internal company rules requiring all employees to "dress neutrally", said the European Court of Justice (ECJ).
Visas for Exceptionally Talented Techies

The ‘Exceptional Talent’ (ET) visa is the sole immigration category which is determined by a designated expert body and not the Home Office.

The ET visa is aimed at non-EU nationals who are world leaders or potential world leaders in the fields of science, humanities, engineering, the arts and, more recently, digital technology.  If approved, the visa permits the individual to work in the UK for up to five years after which time they can apply for permanent residence.

The initial application is made to the Home Office or UK Consulate and must satisfy the general immigration requirements.  The Home Office/Consulate then refers the application to the expert body for their endorsement.  There are five expert bodies approved by the Home Office who determine their own criteria as to who has sufficient talent.  Tech City UK is the designated expert body for digital technology applicants.  If approved, an endorsed potential applicant must then apply to the Home Office for leave relying on the endorsement.

There are a maximum of 1000 visas permitted per year divided up into roughly 200 for each category.  However, the take up has been low and this is why Tech City UK was able to increase its allocation since other bodies have not used up theirs.

The maximum figure for ET visas is likely to increase following Brexit, assuming EU nationals will no longer have the right to work in the UK.

The Tech Nation visa is one of the  six “Tier 1 Exceptional Talent” visas, which are also available for science, engineering, humanities, medicine and the arts.

Tech City UK was able to increase its allocation since other bodies, which include the British Academy and the Royal Academy of Engineering, did not use up theirs.

According to a recent report from industry body techUK, 28pc of new workers in the tech industry between 2009 and 2015 were from outside the European Union.

A rose by any other name would smell as sweet

A number of news outlets are reporting on Waterstones' decision not to use its name, branding and trade marks in three new stores opened on local high streets.

Ownership of a trademark does not compel a owner to use that trademark on all their goods and services. The trader is free to choose whether they wish to use the mark or not, but they need to keep in mind that if they don't use the mark over a five year period then the trademark could be revoked for non-use.

The public concern is more directed at the misrepresentation to the public that occurs from not explicitly making the connection with the chain retailer clear. Some members of the public feel cheated when it turns out that money they were spending in what they thought was a local business wasn't remaining in the local community.

However, the tactic is nothing new and has been used in other circumstances. People may well remember the Student Loans Company became embroiled in a dispute after sending letters out in the name of Smith Lawson & Company, purporting to be a debt recovery company acting on their behalf.

In that instance the Office of Fair Trading intervened but only asked the Student Loans Company to change some of the wording in the letters which it felt were deliberately misleading (such as "We are instructed by our client").  In the case of the Waterstones shops, the first store was launched as "a quintessentially local bookshop", but it seems unlikely that there is any legal misrepresentation which needs to be addressed.

Waterstones, the UK's leading bookshop chain, is on the defensive after going incognito at some of its newer stores.

The firm has opened three shops that do not feature its distinctive branding, prompting accusations of deception.

But Waterstones' chief executive, James Daunt, told the BBC the move was justified, saying he wanted the shops to have a more independent feel.
Civil Partnerships - Wait and see…

An interesting commentary on the recent ruling on heterosexual couples and civil partnerships written by Stala Charalambous, Partner and Head of Family Law at GSC Solicitors LLP. 

On 21st February, the Judges in the Court of Appeal case Steinfeld and Keidan v Secretary of State for Education Judgement [2017] EWCA Civ 81] dismissed the Appeal of Rebecca Steinfeld and Charles Keidan, for the right of a couple of the same sex to be able to enter into a civil partnership. This has caused a stir in the media. The decision has been referred to as ‘discriminatory’ and a ‘Breach of Human Rights’

At present, couples of the same sex can simply live together, without any legal rights, enter into a civil partnership or marry. Couples that are not of the same sex can either cohabit or marry. The law in relation to civil partnerships is set out in The Civil Partnership Act 1974. Section 3(1) (a) of the Act, prohibits couples who are not of the same sex from entering into a civil partnership.

A couple living together who have neither married nor entered into a civil partnership are referred to as cohabitees. A cohabitee does not have the same legal rights as either a married person or a person in a civil partnership. There is no legal recognition of a ‘common law wife’. To have any legal rights, a different sex couple would have to marry whilst a same sex couple have the additional option of entering into a civil partnership.

Tim Loughton MP for East Worthing and Shoreham, has presented a Bill (The Civil Partnership Act 2004 (Amendment) Bill 2016-17) before Parliament to amend The Civil Partnership Act1974 to allow couples of a different sex to enter into a Civil Partnership.This Bill will have the second reading on 24th March 2017.

The Government is adopting a cautious ‘wait and see’ approach. Statistical data has shown that since same sex couples have been able to marry, there have been less civil partnerships taking place and more of them have been dissolving. The government is therefore waiting to see what effect there will be on the number of civil partnerships being taken up by same sex couples now that they also have the option to marry. If fewer are choosing to enter into a civil partnership, then the government may decide to abolish civil partnership altogether.

A campaign aimed at overturning the ban on heterosexual couples entering into civil partnerships has gained ground despite defeat at the court of appeal, equal rights supporters have claimed.
Should Uber be paying VAT?

The ever-controversial yet ever-popular taxi hailing app 'Uber' has hit the headlines again this week with claims that it should be paying VAT on fares. If the claims are well-founded, this could result in Uber having to pay VAT going back four years or more – a hefty blow when you consider Uber’s VAT bill was allegedly £20 million for the year 2015 alone.

A leading tax barrister, Jolyon Maugham QC plans to argue in the High Court that Uber is making a “taxable supply” and should therefore be paying VAT on rides.

Uber have sought to describe themselves as merely a “platform” which connects riders and drivers rather than a transportation service, meaning that it does not have to pay VAT. Instead, Uber shifts the responsibility for VAT onto its drivers, arguing that if drivers earn above the VAT threshold then the tax is their responsibility.  

This case echoes the landmark employment tribunal ruling last October in which Uber lost the right to classify UK drivers as self-employed and was ordered to pay drivers minimum wage and holiday pay. The tribunal in that case found that Uber supplied transportation services to passengers. This reasoning could be applied to argue that Uber should therefore be paying VAT.

If this challenge is successful and Uber are forced to pay VAT on fares, Uber may be forced to re-think its business model and either increase fares or decrease drivers’ pay. When you consider that Uber replicates this structure across the EU, the tax bill could be multiplied significantly given that VAT should operate identically across the EU.  

Uber's having a rough week.

The company is facing yet another legal challenge, this time in the UK, from a respected barrister who claimed Uber owes the country at least £20 million in VAT.
There is more than one way to skin a cat.

I am very proud that my colleague Michael Shapiro has been made an equity partner in the Firm. Michael's route to partnership has not been the conventional one, joining the firm as an office junior back in 1988, with just his O-Level's and a year's business administration course behind him.

Undertaking all his training whilst at the firm, Michael qualified as a legal executive in 1997 and his hard work and determination has seen him continue to progress through the firm to Head of Litigation, and eventually Partner.

Michael has always brought something different and unique to the firm. He is testament to the fact that the same approach doesn't always work for everybody in every situation, a culture and philosophy he continues to apply to his clients on a day to day basis.    

Many congratulations Michael, Mazeltov.

GSC Solicitors LLP has appointed Michael Shapiro as an Equity Partner after three years as a partner and 12 years as a Head of Commercial Litigation.
National Living Wage - HMRC's name and shame policy

Having been introduced originally in 1999, the National Minimum Wage is affecting more businesses across the UK as the rates continue to rise.

The National Minimum Wage has risen nearly 17% since 2010 and is due to rise to £7.05 (for 21 to 24 year olds) from April 2017. 

That increase doesn't taken into account the higher National Living Wage for workers aged at least 25. Introduced in April 2016, the current National Living Wage is £7.20 per hour and is set to rise to 7.50 per hour in April 2017.

With the current Chancellor targeting a rate of £9 per hour by 2020, businesses now more than ever should be ensuring that they are comfortable that their employees are being paid at least the minimum rates, especially in light of recent decisions from the European Court which have meant additional hours need to be included in the calculation (such a travel time for peripatetic workers).

Whilst disputes over wages should be discussed between the employer and employee initially, ultimately enforcement of the minimum wage (along with other statutory payments such as maternity pay) is the responsibility of HMRC. Disputes are often swiftly resolved as employers are quick to rectify their errors, but expect HMRC to increasingly use "name and shame" tactics to enforce compliance with the rules and raise awareness of employers' obligations.

The government has named 360 businesses which have failed to pay either the National Minimum Wage (NMW) or the National Living Wage (NLW).

More than 15,500 workers had to be paid back nearly one million pounds.

Excuses used by businesses for not paying the full basic wage included using tips to top up their pay, making reductions to pay for a Christmas party, or making staff pay for their own uniforms.
The costs of Leasehold ownership

This article by the BBC highlights the need for all parties to a property transaction (whether residential property or commercial property) to take time to understand what is being transferred and on what terms. Generally, solicitors are not there to provide investment advice to their clients, but it is important that individuals and businesses understand the potential legal ramifications of a leasehold arrangement including break clauses, service charge, ground rent, rent review clauses and the costs of obtaining licences to alter if you want to carry out works to your leasehold property.

For instance, in the example from the video linked to the article, the ground rent due on a flat over the course of the 190 year lease totalled over £1.3 billion despite the leasehold interest in the flat only costing £150,000. This resulted from a fairly unusual provision which doubled the ground rent every 10 years, meaning that the ground rent due grew exponentially over the term of the lease. However, the long term effect of any rent review clause should always be discussed with your solicitor, regardless of the current level of rent due.

If your solicitor is not willing to discuss this with you as part of their retainer, you must seek advice from a solicitor who will, regardless of whether they have been recommended, approved or suggested by the developer, seller or your mortgagee.

When putting pen to paper to buy a new home, most people expect to know how much they will need to pay to own it outright. But thousands of families in England and Wales are discovering the new-build houses they bought are not all they seemed.
Right to Rent – What Landlords Need to Know

As a firm we are receiving an increasing number of queries from landlords over their need to check the immigration status of their tenants. Michael Shapiro's recent article explains what is required in more detail.

If you are a residential landlord, there are some aspects introduced last year that you may not be aware of but should be. GSC Solicitors’ Head of Litigation & Dispute Resolution, Michael Shapiro, talks you through these new liabilities and what happens if you fail to fulfill your obligations.
McCartney intends to Get Back his share

The Beatles back catalogue is one of the most valuable in the world and Sir Paul McCartney has issued proceedings against its owner (Sony) to clear the way for him to reclaim his share of the publishing rights in his songs.

McCartney will not be in a position to start reclaiming his songs until 2018, but he has issued proceedings in the US seeking a declaration that in line with US law he is entitled to terminate the agreement under which assigned his publishing rights.

Over recent years, several artists have been reclaiming their copyrights in the US, but in 2016 an English Court ruled that Duran Duran could not rely on the US law to terminate their UK publishing deal even in respect of their US copyrights.

It is important to note that the Duran Duran case was decided on its own facts and contractual wording and so does not automatically indicate that McCartney's claim will fail. Indeed, as he is bringing the case in America, the right to terminate is far more likely to be effective than it was for Duran Duran in the UK court, where Mr Justice Arnold acknowledged that no expert evidence regarding the extent of the US law had been submitted by either party.

Duran Duran have already indicated that they intend to challenge the court’s ruling and with Paul McCartney's new claim, this promises to be an area of significant importance to writers and publishers in the coming years.

It could become one of the most important legal battles in music - Sir Paul McCartney is suing Sony over control of The Beatles' back catalogue.
The star has gone to a US court, seeking to regain the publishing rights to 267 of the band's classic songs.
Courier companies could be saddled with more costs

Despite several successful tribunal decisions challenging self-employment status, the legal position has not changed.

Tribunal decisions are not binding and each case is determined on its own facts.  Uber has appealed the decision against it and, the courier companies will probably follow. The appeal process can be prolonged for many years by appealing to higher courts, each time adding more costs to the individuals or their union backers.

What will make a difference is the enquiry into the future world of work by the Parliamentary Committee on business strategy.  This will focus on the status and rights of agency workers, the self-employed and those working in the ‘gig’ economy.  If there is a change in the law confirming worker status then this will have financial repercussions for companies in the ‘gig’ economy who will then be required to pay couriers/drivers the national living/minimum wage and holiday pay.  Price increases for customers will, doubtless, follow. 

A cycle courier working for the delivery firm CitySprint has won the right to paid holidays and minimum pay in a key ruling on the gig economy.

The central London employment tribunal ruled that CitySprint had unlawfully failed to award holiday pay to Mags Dewhurst and had wrongly classed her as a self-employed freelancer. CitySprint, which has 3,500 self-employed couriers in the UK, could now face further claims.

Maximum Enforcement for Minimum Wage?

The penalties for failing to pay the national minimum wage and national living wage are high.  They amount to 200% of unpaid wages (or 100% if paid within 14 days of any enforcement notice) up to £20k per worker maximum.  This is in addition to the unpaid wages payable to the individual (penalties are payable to the government).  Any enforcement action will also result in ‘naming and shaming’ on Government websites. 

Whilst HMRC’s enforcement action should be sufficient to persuade most solvent and scrupulous employers to pay the NMW/NLW, there are a number of grey areas where HMRC does not tend to get involved.  These include cases involving whether travel time between assignments is working time (it is now confirmed that it is), interns who are required to work unpaid for long periods and workers in the “gig” economy who are required to register as self-employed with recent tribunal decisions upholding their status as workers.  Worker status entitles an individual to be paid the NMW/NLW in addition to holiday leave.

Enforcement via HMRC for any worker/employee who has not been paid the NMW/NLW is relatively quick and free. But perhaps more resources ought to be allocated for complex cases which require determination by an employment tribunal.  Without financial backing, these cases can be expensive and prohibitive for any individual to pursue which defeats the purpose of the national minimum/living wage.

Speaking ahead of the launch of the £1.7m BEIS campaign today, small business minister Margot James said there were “no excuses” for underpaying staff.

“This campaign will raise awareness among the lowest paid in society about what they must legally receive and I would encourage anyone who thinks they may be paid less to contact Acas [the advisory, conciliation and arbitration service] as soon as possible," she said.

“Every call is followed up by HMRC and we are determined to make sure everybody in work receives a fair wage.”

I am Spartacus - Can your firm use your name?

An interesting case emanating from the Intellectual Property Enterprise Court has shed light on what rights a professional may have in respect of the use of their name following retirement. 

A partner at a law firm created a separate sub-brand for her work, which incorporated both the firm name and her own. This was registered as a trade mark by the firm and was used for a number of years. However once the solicitor left the partnership, the firm continued to use the sub-brand in her area of expertise attracting the ire of its previous partner.

The solicitor claimed that by continuing to use her name in the sub-brand the firm was passing itself off as associated with her and the goodwill she had built up as a professional in her field.

This argument was rejected by the court. Whilst acknowledging the reputation that the solicitor enjoyed, the court found that this did not mean she had built up any goodwill which she herself owned. A key fact was that at all material times she traded as part of a partnership and therefore goodwill generated by her actions were owned by those partnerships rather than herself.

The position may well have been different if she had at some point in the past traded by herself as a sole practitioner but, without owning any goodwill, the solicitor was not in a position make a claim for passing off in this instance.

It was agreed by all parties that the solicitor could continue to use her name in the field and the court opined that if the firm continued to represent that she still worked for the firm, then she would have grounds to make a complaint. So whilst the firm can not claim to be her, they do not need to disassociate themselves from her either. 

This was a summary judgment decision which focused on the question of whether a partner or the firm owns the goodwill she develops in the course of her professional duties and whether she can stop the firm from continuing to use her name when she leaves the partnership.
Cost Caps and the Part 36 incentatives

In a recent case in which this firm acted for the successful claimant, the Intellectual Property Enterprise Court ruled on the interaction between the costs caps in that court and the various incentives to make offers of settlement under Part 36 of the Civil Procedure Rules.

Previous case law had limited the effect of the Part 36 incentives, holding that the costs caps still applied to the rewards otherwise available to a party making and then beating its Part 36 offer.  This severely limited the benefits of making a generous offer of settlement (and so limited the attraction to the other party of considering whether to accept that offer) as there is likely to be little room left in the staged costs caps in which to recover any additional sums.

In PPL v Hagan, HHJ Hacon has altered the costs position.  The judge followed the Court of Appeal's decision in Broadhurst v Tan (on fixed costs) and ruled that an award of indemnity costs pursuant to Part 36 fell outside of both the stage and overall cost caps.

This will provide a strong incentive for claimants and defendants to make reasonable part 36 offers, especially in the early stages of the litigation.  Failure to accept an offer that subsequently beaten will deprive the paying party of the protection of the costs cap (from the time that the offer was due for acceptance) and so is likely to have a severe effect on the amount of costs that will be awarded against them.

In a recent IPEC decision, PPL v Hagan [2016] EWHC 3076 (IPEC) (30 November 2016) HHJ Hacon concluded that both staged costs and the cap in IPEC does not apply to an award of costs under Rule 36.14(3)(b).
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