Hillyer McKeown Blog

On a crisp winter afternoon four competitors brave and true stepped onto the first tee at Bromborough Golf Club.  Their heads and hearts filled with dreams of magnificent drives, great putts and ultimate victory.  For one team, these dreams were to be very short lived!

Representing Hillyer McKeown were Steve Harvey and Anton Stirrett and representing Mitchell Charlesworth were Clive Plummer and Richard Johnson.

Despite playing some reasonable golf over the opening holes, team Hillyer McKeown found themselves four down after four holes.  Steve Harvey bemoaning the fact that he was two over gross standing on the fifth tee only served to underline the fact that Mitchell Charlesworth were on fire!

Harvey managed to secure a half on the par 4 fifth hole (although he thought he had won the hole, only to be informed by Clive that Richard in fact had a shot!)  In order to try to rally the team, Anton then foolishly uttered the words ‘at least we’ve stopped the rot with that half’ – how wrong he was!

What followed can only be described as ‘spectacular!’

Clive Plummer stepped to the par three sixth tee with his trusty 7 iron in hand.  One cultured swing and one bounce later, his ball was nestled in the bottom of the cup – a sensational hole in one!  Awesome news for Clive and team Mitchell Charlesworth and a dagger blow for the boys from Hillyer McKeown.

Full capitulation from Hillyer McKeown then commenced!

More steady golf from Mitchell Charlesworth and more missed putts from Hillyer McKeown resulted in a score of dormie 7 standing on the 12^th tee.  Despite Anton winning the 12^th with a ‘stunning’ par it was too little too late.

The 13^th hole was halved and hands were duly shaken.  A comprehensive victory for Mitchell Charlesworth and a humbling defeat for Hillyer McKeown.

A thoroughly enjoyable day was had by all and once again, massive congratulations to Clive for his hole in one.

On behalf of myself and everyone in the Clubhouse, I’d like to thank Clive for getting the beers in!

Following much soul searching and wound licking, I’m sure that team Hillyer McKeown will be raring to go for next year’s return match.

In the recent blog we commented upon the High Court allowing documents to be served using the social networking medium “Twitter”.

Recently the Court again found itself in a position having to consider potential liability of an internet entity this time in the context of defamation proceedings.  The Court had to consider whether or not the Internet search engine Google was liable for the defamatory content of snippets which appeared on Google’s search results.

The Claimant ran distant learning courses in games development and issued proceedings after postings appeared on a website published by another defendant.  When certain words were typed into the Google search engine the third and fourth results returned included a snippet that was defamatory in its nature.

The Claimant stated the snippet was defamatory and that Google was liable as publisher of the defamatory comments.  However the Court disagreed and decided that Google was merely “a facilitator” rather than a “publisher”.

Google was not liable as a “publisher” because it had not taken any positive steps to authorise or cause the snippets to appear on the user’s screen and had no effective editorial control over the defamatory content even though it was aware of that content.

The distinction between a search engine and a web host is an important one.  Web hosts and publishers, unlike search engines, will remain liable for defamatory content published on their web sites by third parties as they have editorial control.  Therefore if an individual or company takes issue with a defamatory comment appearing on a search engine then, particularly if the content is high up on the search engine’s results, they should not only seek removal of the content by the search engine but in addition they must address a complaint to the author and publisher of that content.

Hillyer McKeown proudly announces the launch of their new look website and blog as part of their online marketing strategy. Whilst the website has been given a makeover the blog is a completely new offering. Called ‘Legally Speaking’ the blog is ‘dedicated to providing a voice for clients in a way that hasn’t been done before’ says Debbie Edwards, Head of Business Development.

‘This is not just another forum for debate but a way in which we can work in partnership with other professional services such as accountants, tax specialists and various other essential services, adding real time value to our customers. Whether they are a private or business client being able to access timely and relevant news and articles from a varied pool of experts will ultimately increase the level of service we can offer our clients – it also gives them the opportunity to discuss the issues that are most important to them at a time that is convenient’.

In the current climate we need to work together for the benefit of all our clients and our new partnership blog is just the first in a number of online initiatives that will allow us to do just that.

Visit the website at: http://www.hillyermckeown.co.uk

Recently Courts in New Zealand and Australia have permitted service of legal documents via Facebook, thus very much bringing their procedures into the 21st Century. In a recent High Court case, English Courts have joined the information revolution and made an Order for service of documents using the social networking medium ‘Twitter’.

Mr Blaney ran a blog called ’Blaneys Blarney’ and was being impersonated on Twitter by someone using the Twitter username ‘@BlaneysBalarney’, together with a photograph of him and a link to his blog. The injunctive relief sought was against this unknown Defendant requiring that he cease the posting, preserve the account and passwords and to identify himself to Mr Blaney’s solicitors.

As the Defendant was anonymous, there was no easy means of identifying him and, therefore, the High Court Judge allowed service of the Order via Twitter directly on the Defendant. Ordinarily if a Claimant is unable to identify the prospective Defendant, a not uncommon occurrence when the Defendant is using an Internet medium for the alleged illegal activity, Orders would be sought against the website and the Internet service provider. The ability to serve the anonymous Defendant direct provides a quicker and cheaper route whilst still leaving the route via internet service provider and website available if necessary.

In this case the Defendant complied with the Order. If he had not then the Court could have ordered Twitter to have provided information to establish whether the Defendant had read the Order and failed to comply. The Defendant would then have faced the prospect of additional costs if the Claimant had been forced to take more draconian steps against the website and/or internet service provider.

It is likely that such applications will become increasingly common given the increased use of the Internet as a means of communication. Such Orders could be sought in cases of harassment, defamation, breach of confidentiality and intellectual property.

The Court of Appeal has ruled that a series of emails between a university and a language school did not add up to a binding contract because they lacked the necessary detail about the services to be provided.

The school had been providing places at the university since 1998 for European students wishing to learn English. The arrangement was based on a series of standard annual contracts containing specific details of the services provided and acknowledging each side’s intention to continue the relationship the following year.

However, the 2005 contract did not contain any mention of the 2006 season. During 2005, the university emailed the school to say there would be fewer rooms available in 2006 due to refurbishment.

The school responded by saying the reduction was unacceptable and in breach of the contract. The university reiterated that places were limited and the school should make alternative arrangements.

In 2007, the university took action to recover money owed by the school for the 2005 season. The school accepted the money was owed but said it should be offset by the fact that the university had breached its contract in 2006.

The recorder ruled in favour of the school but that has now been overturned by the Court of Appeal. It held that the working relationship between the two sides had always been defined by annual contracts containing specific details.

There was no reference to 2006 in the previous year’s contract and the subsequent emails between the two did not contain enough detail for the school to argue that an offer had been made and accepted.

In addition, any acceptance of a contract offer would have to set out the terms on which the offer was being made. This had not happened in this case and the school had merely relied on what had happened in previous contracts.

Please contact us if you would like more information about any aspect of contract law.

A firm has failed in its bid to impose a blanket ban preventing a former director from canvassing its customers.

The director had started out as an employee at the company working as an engineer. His terms of employment contained a covenant stipulating that if he resigned he would not canvass any of the company’s customers until a period of six months had passed.

He later became a director and continued working as an engineer. Some years later he handed in his notice and resigned his directorship.

The company then became aware that he was canvassing customers and took legal action. The director agreed to abide by the covenant until the six months had elapsed.

However, the company then sought a blanket injunction preventing him from canvassing customers. It submitted that even though the six-month agreement had ended, he still owed a continuing fiduciary duty – that is, the duty to act in the company’s best interest – based on the fact that he had been one of its directors.

However, the High Court has rejected the application saying it was surprising that the company wished to use fiduciary obligations as a way of justifying a blanket prohibition. Such a ban would not be appropriate given that both sides had previously agreed to a six-month period.

Please contact us if you would like more information about these issues.

The Office of Fair Trading (OFT) has fined 103 construction firms a total of £129.5m for colluding with competitors when bidding for contracts.

The OFT investigation found that the firms had engaged in illegal anti-competitive bid-rigging activities on 199 tenders from 2000 to 2006.

The bid-rigging was mostly in the form of cover pricing. This involves firms that are supposed to be competing against each other actually deciding to co-operate instead.

The firms that can’t or don’t want to take on the contract put in artificially high tenders so the customer is misled into believing that there is real competition.

The OFT says this practice distorts the tender process and makes it less likely that other potentially cheaper firms are invited to submit bids.

An OFT statement said: “In 11 tendering rounds, the lowest bidder faced no genuine competition because all other bids were cover bids, leading to an even greater risk that the client may have unknowingly paid a higher price.

“The OFT also found six instances where successful bidders had paid an agreed sum of money to the unsuccessful bidder (known as a ‘compensation payment’). These payments of between £2,500 and £60,000 were facilitated by the raising of false invoices.”

The infringements affected projects worth more than £200m including schools and hospitals as well as several projects for the private sector.

Bid rigging is illegal under the Competition Act 1998 and Article 81 of the EC Treaty. Companies that breach the rules can be fined up to 10% of their annual worldwide turnover.

Please contact us if you would like more information.

The High Court has ruled that it is lawful for employers in the UK to oblige employees to retire at 65 even if those employees want to continue working.

However, the situation could soon change because the Government has brought forward a planned review of the Default Retirement Age (DRA). It will now begin next year and it’s widely expected to raise the age level or even abolish it altogether.

The High Court ruling followed a challenge to the DRA by Age Concern, Help the Aged and the Equality and Human Rights Commission. They argued that the UK was contravening the European Directive on Equal Treatment which bans discrimination on the grounds of age.

The case was put before the European Court of Justice (ECJ) in 2007. It ruled that obliging UK workers to retire when they reach 65 is not unlawful as long as it can be “justified by legitimate aims” relating to social and employment policies.

The issue then reverted back to the High Court to decide whether those conditions were being met.

Mr Justice Blake rejected the challenge by the campaigners on the basis that the default retirement age was justified when it was introduced in the Employment Equality (Age) Regulations 2006. However, he said he might have reached a different conclusion if the DRA had only been introduced this year or the Government had not announced a review.

He added that the case for raising the age was compelling and he could not see how 65 could remain as the default age once the review had been carried out.

Announcing the review, the pensions minister Angela Eagle said: “The government is responding to the changed economic landscape.

“As Britain’s demographics change it is sensible that we have the debate on what works for business and individuals. The retirement laws need to reflect modern social and economic circumstances.”

We shall keep clients informed of developments.

A new raft of measures introduced in the Companies Act 2006 came into effect on 1st October and will impact on directors and the way they run their businesses.

The changes cover a wide range of subjects from directors’ addresses to the filing of accounts and notification of changes to your company’s articles.

The issue of addresses has received a lot of attention because you must now provide Companies House with both your residential address and a service address for each directorship you hold.

These service addresses will be publicly available but the residential addresses will only be available to regulatory authorities and to credit reference agencies. The service address must be a place where documents can be delivered and a receipt obtained if required. This could be the company’s registered office but can not be a PO Box or DX number.

A director can choose to use his residential address if he wishes, in which case it would not be apparent from the public record that the two addresses are the same.

However, your residential address will automatically become your service address and become publicly available unless you register a separate service address. You may want to do this if you want to protect your personal privacy.

There are also changes to the arrangements for inspecting company registers. Registers can be held at the company’s registered office or you can have a Single Alternative Inspection Location (SAIL). You have to notify Companies House if you want to set up a SAIL or change it at a later date. You can only have one SAIL for a company at a time.

Directors will need to be aware of changes to filing annual returns and accounts. The deadline for filing accounts has been reduced from ten to nine months after your year end. It means that if you normally have to file by 31st January, you will now have to file by 31st December.

It’s also important to keep your records up to date and make sure they tally with the official record. Companies House should be informed of changes as they happen rather than leaving it until the annual return.

Any amendments to your company’s articles must be notified within 15 days. Failure to do so could result in a £200 fine and could leave you liable to a criminal offence.

The Act also makes it easier to set up a company and introduces new model forms of articles of association. You can continue with your present constitution if you wish, or you may prefer to switch to the new articles and treat it as an opportunity to review the administration of your company.

All Companies House forms have been changed to include more information and guidance notes. You will now need to use these new forms, as anything submitted on old forms will be rejected.

Please contact us if you would like more information about the new measures or any aspect of the Companies Act.

In Nirah Holdings Limited v British Agricultural Services Limited and Hanson Building Products Limited [2009] EWHC 2282 (Comm), the High Court considered whether, under the terms of an option agreement, a landowner was entitled to refuse to enter into a section 106 agreement.

The local planning authority (LPA) had resolved that it was minded to grant outline planning permission for a freshwater visitor attraction and science research park, subject to a section 106 agreement being entered into. The section 106 agreement required a shuttle bus service route to be agreed with the LPA before the development opened to visitors.

The landowner refused to approve the section 106 agreement. It claimed that the developer had not supplied enough information about the route of the proposed shuttle bus link to enable it to assess whether the section 106 agreement would be detrimental to its development aims for its retained land.

The High Court held that the landowner had enough information to make this assessment and was unreasonably withholding its approval. It granted the developer an order for specific performance requiring the landowner to enter into the section 106 agreement.

This case is a useful illustration of the issues that can arise for landowners when they grant an option agreement over only part of their land. The option agreement may need to include safeguards designed to protect the value or development potential of the retained land.

Read more http://property.practicallaw.com/9-500-2358