Next Trainee Solicitor Intake

Trainee Solicitors:

We will be interviewing candidates for the next intake in Spring 2010, with a contract start date of September 2011.

Applications, by email, can be accepted from January 2010 and those we wish to take further will be contacted.

Personal Injury

A baby damaged at birth has failed to recover damages. In Garcia v East Lancashire Hospitals NHS Trust the court looked at what was the cause of the damage to the child was and determined there was no negligence by the NHS trust concerned. Difficult cases such as this will rest on the medical evidence concerned.

Matthew Bailey says:

"We handle a wide range of personal injury cases and few are as traumatic as when a baby dies or is injured at birth. A damaged child will cost the parents a lot of money to raise and where the hospital has been negligent a claim can be brought. Although in the Garcia case, the connection between the action of the hospital and the damage was not found (and the court determined that even if the child had been induced and the birth been earlier the injury (a stroke) would still have occurred) in other cases a valid claim can be made. It is also important that those responsible are called to account. The same applies if you are injured at work through the fault of an employer or in an accident such as whilst driving the car.

Many personal injury cases can be handled on a no-win, no-fee basis if you prefer and once liability is established the question of damages needs to be determined. If you need any advice on personal injury issues contact us for information"

Call Matthew on 01329 822333 for advice.

Buzz Marketing - New Rules

Many local clients try all kinds of weird and wonderful advertising stunts rather than a straight forward brochure or mailing. One of the newer forms of advertising with potential to reach many prospective customers is internet marketing.

Ian Robinson says:

"We can advise you on all the rules and regulations in this area. On 26th May, the new Consumer Protection from Unfair Trading Regulations 2008 comes into force. These regulations have an impact on buzz marketing and marketing via social networking web sites such as Facebook and MySpace.

The regulations introduce a new criminal offence of "Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession or falsely representing oneself as a consumer" (sched 1 para 22). This has huge implications for the advertising industry as some modern advertising methods work on the basis that individuals online are engaged to recommend a product to their friends or a group of individuals go to sit in a bar or other public place and talk loudly about the virtues of a particular product. So from 26th May, planting a comment in a blog without making clear that the message has been placed by or on behalf of the business could be a criminal offence.

In addition, anyone seeding viral advertisements online in a way that implies they are just a member of the public could also infringe that prohibition. Another area where businesses often fall foul of the law is where they use photographs in brochures, on websites and online without permission from the copyright owner. It always pays to check difficult legal issues with lawyers before an expensive marketing campaign is launched and also to ensure there are writing contracts with advertising agencies which makes clear whether the agency or customer are responsible for legal compliance.

For further information call Ian Robinson on 023 9286 2424.

Self Employed Workers Claim Unfair Dismissal

Many contractors who are really employees, wrongly pretend to HMRC that they have self employed status. Yet they turn up to work every day, are controlled by the employer, not allowed to substitute a different person to undertake the work and have all the hallmarks of being employed. In a recent Court of Appeal case it was held that two such workers could later argue they were employed when it suited them.

Andrew Bryan says:

"This case should serve as a warning to employers to be absolutely sure that workers are really self-employed, otherwise their contractors might later bring unfair dismissal claims if their contract is terminated, which is only possible for employees who have worked for a year for that employer. It is also worth, on a regular basis, having lawyers check your consultancy and contractor agreements and also advise on whether individuals really are employees or not.

The interesting legal point in this case was that the employer was saying the employees (Mr Payne and Mr Grace) could not, in effect, lie about their legal status when it suited them for tax purposes. Then completely change their view when it suited them to bring an unfair dismissal claim against the employer, arguing that they were employees all along. The employers tried to argue that the contract was "tainted with illegality" as the individuals had misrepresented to HMRC that they were self employed when they were employed. The court found that the individuals were originally taken on a self-employed basis but later the employer had suggested to them they were employed. Obviously, if an employer can avoid making any such suggestions that will put the employer on much stronger ground. The court thought there was an error of categorisation of the employment contract rather than an illegality or misrepresentation by the employees and they could bring claims as if they were employees.

It is important that contracts are correct and the distinction does matter between employees and contractors. For example, if the contractor is producing work protected by copyright or patents the contractors will retain ownership unless the contract says otherwise, whereas with an employee, copyright and patent rights automatically rest with the employer."

Contact us if you need advice on your employees and contractors.

Supermarkets Raided by OFT

On 24th April some leading supermarkets were raided by the Office of Fair Trading after a tip-off by Wal-Mart/Asda about practices which may breach UK competition law. Emails were seized in what the supermarkets claim is a "fishing expedition", crossing many products and sectors.

Andrew Bryan says:

"The raids follow a separate investigation into pricing arrangements for cigarettes sold in supermarkets and came the same week that the Competition Commission issued its report into the sector. However, the OFT in the same week also had to pay Morrisons £100,000 in a settlement of the company's libel action against the OFT arising from an OFT press release suggesting Morrisons was guilty of competition law breaches (before that is proven) in the on-going investigation into milk pricing.

The OFT appears to be getting tougher. It issued a statement of objections - the equivalent of a writ/claim - against 112 construction companies recently for alleged cover pricing and compensation payments. Many of these companies have already admitted guilt and applied for leniency. Although some parts like the ban on price fixing and cartels are very easy to understand, not all businesses understand what information they can exchange with a supplier or rival about forthcoming price increases, pricing, discounting on retail prices and the like. The supermarkets have complex arrangements and relationships with their suppliers and it is wise to take legal advice on competition law in relation to many of these practices. Bigger companies often have written competition law compliance programmes and training for staff and issue regular warnings to ensure all employees know what the rules allow. Breach of the rules can lead to fines of 10% of worldwide group turnover, restrictions in agreements are rendered void and third parties can sue for damages. In addition, negative publicity will result. Where there is horizontal price fixing or bid rigging, jail sentences are possible as is extradition to the US if there is a US element, where prison sentences of 10 years for breach of anti-trust legislation are common.

Investigations by the EU are also possible for breach of EU competition law. Recently, formal charges were sent to a group of multi-national companies allegedly involved in a conspiracy to fix prices of marine equipment supplied to the oil industry. This follows raids on the companies 12 months previously in a case which has led to investigations in the US and UK and the first charges for individuals involved for the criminal cartel offence under the UK 2002 Enterprise Act.

Corporate Restructurings

Not all businesses are as high profile as Northern Rock or Bradford & Bingley but many are going through similar periods of financial difficulties at present. Many need more cash like some of the banks that have been in the press during May 2008.

Nicholas Eve says:

"Act early and do not panic, is our principal advice to local businesses in difficulties in the present economic climate. If you may need more funds, think about that early before creditors are calling. Look at cash flow on a regular basis. The Companies Act 2006 sets out the duties directors owe to a company and if you operate through a limited company you need to ensure you comply with your legal obligations. It is an offence to trade whilst insolvent. It is important to take advice from solicitors or accountants before that point is reached so that sensible decisions can be made about the business.

It may be possible to sell off the shares in the company or its assets or sell a partnership or business operated as a sole trader which is preferable to going into liquidation as a company (or bankruptcy for a company). It is better to take charge, appoint your own liquidator or effect voluntary arrangements with creditors where possible. We can steer you through the process and also advise on any sale or refinancing of your business."

Call Nicholas on 01329 822333

Inheritance Tax Case - Sisters Lose Test Case

For 30 years, Joyce and Sybil Burden, aged 90 and 82, have been battling to ensure that when one of them dies the other does not need to sell the home they share in order to pay an inheritance tax bill without success. However, when civil partnerships became lawful they thought they might be able to use discrimination legislation to aid their case. Were they not related, they could have formed a civil partnership and no IHT would be payable when the first sister dies but as they are related they are not permitted to do so. They have lost their appeal in the European Court of Human Rights (ECHR).

Mary Hazlewood says "The ECHR held by 15 votes to 2 that the Civil Partnership Act does not breach the prohibition of discrimination under Article 14 by not giving them exemption from IHT. The court said that as a marriage or Civil Partnership Act union is forbidden to close family members it was right that the sisters were denied the exemption. The sisters have written to the Chancellor of the Exchequer every year since 1976 asking to be treated as a married couple. Although it is within the Government's power to make an exception it is unlikely they will choose to do so.

However, there are a number of steps individuals can take to minimise IHT which in some quarters has been described as a voluntary tax on those not wise enough to plan to avoid it. For a start, assets given away more than 7 years before someone dies are entirely exempt and many individuals give their assets and houses away to avoid the tax entirely. There are complex rules against "reservation of benefit" but with legal advice many lawful arrangements which completely avoid the tax are possible. Secondly, for spouses there is no IHT until the second spouse dies and even then that spouse has the benefit of both their and their spouse's IHT exemption band.

Thirdly, most of those who die do not pay IHT simply because they are well below the threshold. For 2008-2009 this is £312,000. It is only those with assets worth £312,000 or more who have IHT to pay.

Fourthly, even with recent legal changes it is possible to put some assets in trust to avoid the tax. Many individuals put their life insurance policies into trust for their children, which avoids IHT in most cases. In addition, life policies can be taken out and put in trust and the proceeds used to pay the tax.

Finally all the IHT does not have to be paid at once. HMRC allow payments over 10 years.

If you would like advice on reducing the impact of IHT on your estate when you die, contact Mary Hazlewood on 01329 822333

Mental Capacity Act

The Mental Capacity Act makes important changes which will affect many people, including the elderly, and those who may not be in a position to manage their own affairs. In October 2007, it came fully into force and the new Lasting Power of Attorney was introduced (replacing Enduring Powers of Attorney for new such powers). Under the Act there are five key points:

• Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them, unless it is proved otherwise.
• A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
• Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
• Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
• Anything done for, or on behalf of, a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

Tim Bennett says:

“Many of our local clients are unaware of the provisions of the Mental Capacity Act. It is wise to enter into a lasting power of attorney so that your affairs can be handled by those you trust once you lose capacity. In addition, the Act includes a new criminal offence of neglect or ill-treatment of a person who lacks capacity. The act aims to ensure that decisions that are made on the person's behalf are in their best interests. It also provides a checklist of things that decision makers must use and it introduces a Code of Practice for people such as healthcare workers who support people who have lost the capacity to make their own decisions.

The Mental Capacity Act set up a new service, the Independent Mental Capacity Advocate (IMCA) service. This aims to help people make decisions about their lives when they are vulnerable, such as those with dementia, Alzheimer's disease, brain injury or a very severe learning disability. It is for those who do not have any relatives or friends to determine matters for them or voice their views."

If you need any advice in this area, want to set up a lasting power of attorney or work with the elderly or vulnerable and need an update on the latest changes call Tim Bennett on 023 9255 1500

First Day Marketing

John Guest says

“We welcome the decision by the Housing Minister to extend the provisions allowing properties to be placed for sale immediately a HIP has been commissioned (this is called “First Day Marketing”). Anything that makes the HIPS arrangements less obstructive to selling a property is to be encouraged.”

Churchers support the petition to the Housing Minister to continue this initiative so that Clients are not delayed in selling their home by the requirement to have a complete HIP available before being able to market their property.

We provide HIPs for clients enabling them to market their property immediately instructions are received. This is the best route for Clients as HIPs are legal documents and as solicitors, we are best equipped to provide them as a seamless part of a property sale.

A HIP prepared by Churchers will include a Full Official Local Authority Search to ensure that problems do not arise with buyers or their lenders at a later date. Many HIP providers only include Personal Searches without explaining the problems that can arise. We do not recommend this to our Clients, whether selling or buying.

We are keen to help sales proceed quickly and effectively at all times. Please contact us for further details on our HIPs and property sales.

Mills v McCartney

Although most divorces involve much smaller sums of money, the recent judgment in the Heather Mills/ Paul McCartney divorce is of general interest in a number of areas. William Donnelly says:-

The case involved a ‘short’ marriage, four years but with a child. In general, where marriage is short the courts look at the assets built up during the marriage rather than applying a straight 50% split as a starting point. It also involved a marriage where there were enough assets to achieve a clean break without on-going maintenance for the lower earning spouse. In many average divorces there is not enough money to achieve this.

Ms Mills was awarded a capital sum that would yield her £600,000 a year in income which was what her needs were determined to be. She received about £24m including properties, which was more than the £15m pre-hearing offer but less than potentially she might have been awarded.

Also of general relevance in short marriages is whether there was a cohabitation period before marriage which increasingly is added on in ascertaining marriage length. Here the court did not accept the parties lived together before the marriage. In some short marriages, if the period when couples do live together is added to a marriage, a longer period is considered with implications for asset division. The court also found there was over spending by the lower earner of the higher earner’s money after the separation and £500,000 was taken from the award to compensate the husband for that sum.

The other relevant issue was proof – keeping paper work. Being able to show what was spent on what items is very helpful in proving issues in a divorce case. The judgment appeared to show that Ms Mills was unable to prove a number of aspects. Whether she might have done had she not represented herself in person at the trial remains to be seen.

Finally the Government recently announced that its proposals to give cohabitants similar rights on divorce to those who are married had been abandoned. Yet many believe there are “common law marriage” rights under English law which do not in fact exist. It is important that our clients do take some advice on their rights before moving in with a partner. It is wise to ensure wills are drawn up and, in some cases, for properties to be owned jointly and the shareholding clearly set out. Those people concerned about financial claims from a partner when a relationship breaks up can reduce the risks (a) by not marrying and simply cohabiting (b) if they are unmarried, ensuring any house in which they live is in their sole name and not that of their partner and (c) if they cohabit and the property is in their name alone, avoiding taking any financial contribution from their partner towards the mortgage

For those contemplating marriage it may be wise to enter into a pre-nuptial agreement. Although they are not legally binding in this country they can sometimes be persuasive.

For more information on this case or other family law related matters call William Donnelly on 023 92551 500

Home Information Packs

Since last December, every property being sold must have a Home Information Pack. A HIP provides buyers with information about the property they are intending to buy right from the start.

The HIP includes legal documents and searches, as well as an Energy Performance Certificate giving a “fridge type” efficiency rating for the property and makes suggestions for improvements.

We always include the best kind of detailed Official Search in our HIPs. Some HIP providers use other kinds of searches provided by personal search companies. These can cause problems with buyers or their lenders who will not always accept personal search results. Churchers firmly believe that our HIPs are best for clients – the last thing you want when selling a property is for difficulties to get in the way of a successful sale.

HIPs are part of the legal process and as legal people, we strongly advise anyone thinking of selling a property to CONTACT US FIRST so that we can give full advice on HIPs and property sales generally.

Liquidation and Bankruptcy

Some local businesses and individuals can get into financial difficulties. On 21st December, Travelscope Holidays Ltd ceased trading as it was unable to meet its liabilities. In this case, those traveling will have protection as the company is a member of ABTA but many local businesses find they are last in line for payments when a customer goes out of business.

Matthew Bailey says “We can advise you on how to protect yourself against suppliers and customers going out of business. Obviously, protection includes having written terms and conditions of sale which clearly apply and under which ownership of the goods you sell to customers does not pass to them until payment is made (known as a retention of title clause). The clause may also give you a right of entry to their premises to retrieve your goods if they go out of business. These clauses need to be carefully drafted to avoid the clauses being classed as a “charge” or mortgages. Such charges are only valid if registered at Companies House like any other mortgage so avoiding rending those provisions applicable is important.

We can also advise you on payment clauses in contracts, letters of credit for foreign supplies, performance bonds and other legal protection measures. In addition, if you are in difficulties, then we can provide you with all the advice and guidance you need. Individuals go bankrupt and companies go into liquidation. However, there are other options too such as IVA – individual voluntary arrangements with creditors for individuals, and administration instead of liquidation for companies. We also advise on clauses in commercial contracts which deal with situations of liquidation and when contracts can be terminated in such a case. The earlier advice is sought the better. It can often be wise to be in charge of the winding up of a business rather than leaving it to the creditors to apply to wind the business up.

Contact Matthew on 01329 822333

Protect your Inventions

Many local businesses need better protection for their valuable commercial inventions. In December, new patent rules came into force simplifying the patent system. Patents can be registered for up to 20 years for new products or new processes.

Roger Hahn says:

“Some companies let inventions go without bothering to register them as patents, which is a waste. Others find inventors disclose the invention too soon because they have not signed confidentiality or non-disclosure agreements (NDAs) before discussing the invention with a possible business partner. We can draw up NDAs for you and advise on how best to protect your business’ intellectual property.

Another recent change is a new patent scheme run by the UK Intellectual Property Office, whereby customers can now request an online certified copy of their patent applications on line. On 13th December 2007 the revised European Patent Convention came into effect. It makes it simpler to apply for patents too where registration is needed in more than one country in the EU.

“It is wise to have written agreements with collaborative partners dealing with ownership of patents and other intellectual property rights and to ensure in commercial contracts, and even standard conditions of purchase, that it is made clear which party will own any resulting intellectual property rights. Although employers will own patents in inventions made by employees in the course of their normal duties or duties specifically assigned to them, if the individual is self employed that does not apply and it is wise to have written contracts dealing with this. We can draw up these for you. Contact us for further information”.

Call Roger on 01329 822333

Legal New Year Resolutions

As well as the usual personal New Year resolutions to lose weight, get fit or whatever, we suggest that you also consider making some legal New Year resolutions which are likely to be more enduring than most New Year resolutions tend to be.

Ian Robinson suggests the following personal resolutions:

1. Make a will so that you leave your property to those you choose, rather than a list of relatives that inherit. If you die with a spouse and there is no will, the spouse does not receive all the estate in many cases unless you make a will saying so.

2. If you live with a partner, draw up a written agreement about property and money. A popular myth is that a common law spouse has legal rights as if the couple were married but that is not so under existing law. However, plans to change the law to give new rights to cohabitants may cause some to reconsider moving in with a partner. Consult us on the impact of the proposed changes.

3. Consider whether properties you own with others should be held in joint names (which means if you die they receive your share) or as “tenants in common” which means you can leave your share to whomsoever you choose.

4. If you work with a partner, whether in a partnership or through a limited company, draw up a partnership agreement or shareholders agreement dealing with matters such as how much effort both parties put into the business, what profit shares are taken, what happens if one of you is ill or dies or wants to leave and what will happen if an offer for the company is made.

5. If you trade in business, draw up some standard conditions of sale and purchase and formalise any informal distribution, agency and licensing agreements so that everything is clear. This reduces legal costs if a dispute arises later, as the written terms protect you. If you have existing standard terms, have them checked to ensure they reflect the latest legal position.

6. Check your business’ compliance with recent changes in areas such as data protection and employment law, competition law and intellectual property. An annual legal compliance health check is well worth undertaking.

7. Check that all staff are properly putting into force legal instructions e.g. some Purchasing Department staff do not reject suppliers’ standard terms of trading and fail to send back the buyer’s terms. Regular training for this kind of staff can be provided by lawyers and others.

8. Deal with legal disputes quickly and early to ensure they are resolved without the need to go to court, which is risky and expensive. Consider mediation of disputes rather than formal arbitration or court action and always balance risks and possible legal costs against potential rewards.

If you need legal help in any of those areas contact us on Ian on 023 9286 2424

New Laws for 2008

NEW LAWS for 2008
The Queen’s speech was announced on 6 November 2007. This includes a new Employment Bill, National Insurance Contributions Bill and Pensions Bill, and in total comprises 22 new Bills.Ian Robinson says:“Of the 22 new bills, some are more likely to be relevant to business clients than others. Of particular interest are:
1. Employment Bill
This bill will repeal rules dating from 2004, including statutory dismissal and grievance procedures. This will be part of a wider range of measures that will encourage early, informal dispute resolution in the workplace and improve the workings of employment tribunals. This will save employers £180m per year, the Government says. The Bill would also strengthen the enforcement and penalties framework for the National Minimum Wage and employment agency standards.
2. National Insurance Contributions Bill
The National Insurance Contributions Bill will simplify taxation by aligning National Insurance contributions with a higher rate of income tax, in other words a personal tax increase. The Bill will enable Ministers to align the Upper Earnings Limit (UEL) with the point at which higher rate tax becomes payable from 2009/10. It intends to remove the restrictions to the current maximum level of UEL, which stipulate that it can be no more than seven-and- a-half times the Primary Threshold.
3. Pensions Bill
The Pensions Bill will establish personal account pensions for low earners and compulsory employer pension contributions from 2012 to improve incentives to save. This will affect some of our employer business clients. The legislation intends automatically to enrol eligible individuals into personal accounts, although individuals will have the right to opt-out. The sums to be paid into the pensions are fairly small.
4. Other measures
Planning legislation will be reformed and, as regards health, the Government plans to establish a Health & Social Care regulator to ensure "clean and safe services". Following the recent publication of the Climate Change Bill the Government will bring forward further legislation on the provision of clean, affordable energy, and look to make the UK the first country in the world with a legally binding framework for reducing CO2 emissions. Other key areas under review include security, citizenship and democracy. The Government will "seek consensus" on changes to anti-terror legislation and also "renew the constitutional settlement" - the PM has already made clear his desire to see a Bill of Rights drawn up as part of a written constitution.
If any clients would like advice on how any of the new measures might affect them call Ian on 023 9286 2424

Trade Marks

Many of our local clients use innovative names for their businesses and products. Some protect these by registered trade marks. From 1st October, new rules for trademarks come into force.

Matthew Bailey says:

“The new rules provide that the UK Intellectual Property Office (IPO) will now examine trade mark applications to see if the mark is distinctive and suitable for registration as now - but they will no longer check if someone else has the same or similar name. This means that unless trade mark owners are watching out for new registrations by competitors and others, they may find someone registers their name as a mark.

However, companies can oppose an application for registration of their own name or a similar name but that will occur only if they notice it is going through. This makes the UK system similar to that applying in the other 26 EU states which are part of the Community Trade Mark system. Many UK trade mark owners also apply for Community Trade Marks, which provide one mark protecting them in 27 EU states. Under the CTM system 25% of marks which are applied for are opposed but currently in the UK it is only 5%. It is likely that oppositions will also rise in the UK under this new system.

However, the IPO will notify applicants if it notices an overlap with an existing mark. There is also a system where existing owners can pay to use notification services. Contact us if you have any trade mark or similar issues. Call Matthew on 01329 822333

Employment Law Changes

1st October is always a key date for changes in employment law and this October is no exception. Andrew Bryan says:

“There are three main changes this October:

Holidays
The Working Time (Amendment) Regulation 2007 now provides that all employees are entitled to 24 days holiday a year including bank holidays for full time 5-day a week workers. Many workers already have 20 days plus bank holidays so are over the new threshold but some may not and for those this will be a big change.

Flexible working
The Flexible working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2007 extend the right to request flexible working to private foster carers and relatives of private foster carers.

Minimum Wage
The minimum wage rises to £5.52 per hour. For 18–21 year olds it is £3.40 per hour. For under-18s it is £3.40. There is no minimum for those under compulsory school leaving age.

The Equality Act 2006 also came into force on 1st October and the new Commission for Equality and Human Rights (CEHR) replaces the previous equality bodies including the EOC. If you need any advice on employment law changes, contact us for further information Andrew 023 9221 0170.

Directors' Duties

The Companies Act 2006 has changed the law on duties of directors. From 1^st October four of the new seven duties placed on directors of companies are in force.

John Guest says:-

“The four new duties are that the director must act within the powers granted to them by their company, that they must exercise independent judgement, must use reasonable skill, care and diligence and must promote the success of their company. The other three duties come into force in October 2008 - to avoid conflicts of interest, declare interests in transactions with which the company is involved and a duty not to accept benefits from third parties.

Many of these duties already exist as developed in case law over the years but this is the first time they have been written down in a statute. The duty to promote the success of the company extends the existing law. The director has to “act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole” This will include considering the interests of the employees, what consequences a decision will have long term, fostering good relationships with suppliers, customers and others, impact of the business on the community and environment and keeping the company’s reputation for high standards high.

If a director does not pay heed to these issues then they could be sued later by shareholders suing in the company’s name.

For more information on directors’ duties and the Companies Act 2006 in general call John on 01329 822333.

Data Protection

Do you hold mailing lists or information about customers, suppliers and other individuals? If so, you may well need to be registered under the Data Protection Act and also comply with the privacy protection and other measures in the Act. Recently the Information Commissioner found that Orange Personal Communications Services had not processed personal data properly. New members of staff were allowed to share usernames and passwords when accessing the company IT system. In a separate case, it also found that Littlewoods Home Shopping had breached the Act in a case where a customer could not stop the company using her data for direct marketing even after she informed them.

Matthew Bailey says:

“The July Annual Report of the Information Commissioner describes many recent breaches of the law by businesses. We advise a wide range of clients on their obligations under the Data Protection Act 1998 and related regulations. At present the IC is consulting on a new code to replace the current Code of Practice on CCTV under the 1998 Act. All those who use CCTV at work need to comply with the current code until the new one is in place. It requires signs to be placed, amongst other requirements, so that people who are being filmed are aware of the filming.

In a related development, the European Court of justice held that the EU acted unlawfully in allowing private personal data about EU passengers traveling to the U.S. to be passed to the U.S. authorities without their permission. Therefore, a new solution had to be found. The EU has now come up with a new Passenger Name Records (PNR) arrangement. If you gather customers’ data and do mailings to them you should ensure you comply fully with the data protection rules. We can advise you on the law in this field and draft documents for you - such as employee email and internet policy documents for use with staff.”

Call Matthew Bailey for further information on 01329 822333

Lasting and Enduring Powers of Attorney

On 1st October, new rules on powers of attorney come into force. It is wise if people appoint a family member or other person to look after their affairs in case they are later unable to do so. Often this is on medical grounds if they develop a condition such as dementia. This can be arranged in advance and the power registered when it is time to take control of the person’s affairs.

John Guest says:

“Until 1st October individuals can sign an “Enduring Power of Attorney”. Until it is registered, they can change the person they nominate and it will only be operated when registered after they lose the ability to manage their affairs. From 1st October, a new system comes into force but along the same lines. However, it is more complex and involves two separate appointments – one for management of finances and one about medical and health matters. There may be some advantage, in terms of simplicity and lower costs, in setting up the old Enduring Power of Attorney now, before 1st October, after which new powers must be the Lasting Power of Attorney (“LPA”).

“Whether before or after that date however, either forms of power are a very wise precaution, particularly given the increasing numbers of older people who lose capacity, who live much longer than was previously the case and indeed, in some cases are subject to financial elder abuse by neighbours, carers and ‘new friends’.

Individuals can make two types of LPA :

• Property and affairs, similar to an EPA.
  
• Personal welfare, which can include provisions for giving or refusing consent to medical treatment in circumstances where the donor has lost the capacity to make such decisions themselves.

The LPA has resulted from the Mental Capacity Act 2005 which is just coming into force now.

There are five key principles in the Act:

• Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them, unless it is proven otherwise;
  
• Every adult must be given all possible help and support to make their own decisions, and to communicate those decisions where necessary, before they can be assumed to have lost capacity;
  
• Just because someone makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision;
  
• Anything done or any decision made on behalf of someone who lacks capacity must be done in their best interests;
  
• Anything done or any decision made on behalf of someone who lacks capacity should be the least restrictive of their basic rights and freedoms.

For further information to sign an Enduring Power of Attorney before 1st October, or after that date an LPA, contact John Guest on 01329 822333