Sponsorship of Local Rugby Team

Tolhurst Fisher LLP is pleased to be sponsoring the Westcliff RFC 1st XV team this year. The team currently competes in National League 3 London & South East.

Chris Bard, Partner at Tolhurst Fisher LLP, who is also President of Westcliff RFC said: “It is our pleasure to support such a worthwhile community sports facility and its players, and we will be delighted to see the Westcliff RFC 1st XV wearing shirts bearing the name of Tolhurst Fisher LLP this season.”

What is Mediation?

Lawyers advising parties in dispute are becoming increasingly aware of the need to consider ways of helping their clients to resolve disputes without becoming involved in potentially costly and protracted court proceedings.

Mediation is one such alternative and has many advantages to litigation. Mediation, put simply, is facilitated negotiation. A mediator is someone that has been trained to assist the parties to communicate and negotiate effectively with each other. The mediator helps parties in dispute to find solutions that make more sense to both of them than continuing the dispute. In a facilitated mediation the mediator does not impose his views or a decision upon the parties but, throughout the mediation, remains neutral allowing the parties to remain in control of the dispute and the outcome.

Mediation does not follow a set procedure. The mediation may be conducted entirely in “private session” (i.e. meetings with the mediator and each party separately – often referred to as caucusing); it may take place almost entirely in joint session (where the mediator meets with all of the parties together) or it could involve a combination of the two.

The mediator will explore with the parties what the issues are and what they want to achieve; he will help the parties to identify possible solutions. If the parties reach agreement he will usually assist the parties by recording the agreed settlement terms in writing and arranging for both parties to sign the agreement. It is only after a settlement agreement has been signed by all of the parties that it becomes binding.

If you have any questions about mediation and whether it is right for you/your dispute please do not hesitate to contact Nigel Holdcroft.

Promises, Promises

An interesting case on legally enforceable promises (or proprietary estoppel) has recently been decided in the Court of Appeal. In the case of Bradbury-v-Taylor, a widower had invited his nephew and partner to move into part of his large house in Cornwall and provide him with help and support. There were discussions about the precise terms but the Court upheld the nephews view following his uncle’s death that a promise had been made that he would receive the property on the uncle’s death; the nephew had relied upon that promise and had suffered a detriment in leaving his home in Sheffield to look after his uncle.

Better than a handshake

Just because your business has weathered the recessionary storm, the risks have not subsided.  The recovery remains patchy at best with many companies struggling to maintain their performance, let alone contemplate measurable growth.

Such a backdrop has caused unprecedented change throughout many industries, taking with it casualties along the way.  Should those casualties extend to your own customers and suppliers the problems quickly become your own.

Automatic Enrolment

What is it?

The government’s widely publicised automatic enrolment pension scheme began on the 1st of October 2012. The scheme was introduced with the intention of making it easier for people to save towards their retirement. Eventually all employers will need to enroll their staff in a qualifying scheme should they not already be in one.

Parking on private land

Wheel clamping on private land is now a criminal offence as of 1 October 2012.

Whilst there are some limited exceptions under local by-laws, it is really only the DVLA and Police that are allowed to clamp from that date.

The new law comes in response to numerous complaints about instances of gross overcharging for parking on private land.

Take control of your contracts

For any ambitious business, the contracts you sign define your customer and supplier relationships.  When all is going well that much discussed document will be gathering dust in your filing cabinet.  But if the terms of the deal ever come into question it soon becomes a vital point of reference and ultimately could be argued over in court. 

A small amount of time and money invested at the outset getting the right contract agreed, could prevent a far higher expenditure and wasted management time later on. 

But how can you ensure the contract works in your best interest?

Does your stationary break the rules?

A company letterhead speaks volumes about a business, its brand, and the market in which it operates.  But aside from worrying about the colour of the paper and the style of logo there are strict rules that require all companies and LLP’s to provide specific information.

Obviously the company’s name should appear but the company’s registration number needs to be there as well.  Less well known is that recent changes require a company’s place of registration to appear as well, such as England and Wales.

Retention of Title – Do’s and Don’ts

A slower economy, increased payment periods and rising corporate insolvency have all contributed to the more frequent inclusion of retention of title (or “Romalpa”) clauses in commercial supply agreements.  However, although such provisions can offer some limited assistance if your customer fails to pay, increasing judicial scrutiny has created a complex body of fast moving case law.

To help ensure you have the benefit of the protection you believe you are entitled to when it matters most, make sure you follow this guide:

Business Name = Business Asset

Imitation may well be the highest form of flattery, but your losses could be huge if a competitor uses your name to promote its wares. 

Think about it.  Your name appears prominently on your marketing efforts.  It’s above your door.  It’s on your brochures.  It’s how you answer the phone.   Whether it is your listing in a telephone directory, or more importantly for e-commerce, searching for your website, your customer needs to know your name before they can pay you for your services.

ICSA Meeting - Bribery Act one year on

 Tolhurst Fisher was pleased to host the summer quarterly meeting of the Essex Branch of ICSA, the Institute of Chartered Secretaries and Administrators, at its Chelmsford office.

Audience members included representatives from large companies with significant overseas interests, freelance company secretaries, and SME’s. The event focused on developments stemming from the Bribery Act one year on from implementation.

Edward Garston, a senior associate in Tolhurst Fisher’s company commercial department, focused on the legal practitioners’ view, illustrated by cases brought under the Act.  He also offered general advice on compliance and good governance.

Intellectual Property - Are you protected?

George Lucas thought he was in a recent case concerning the stormtrooper helmets, featured in the original Star Wars film.

Back in 1976 when Star Wars episode IV was being produced, Andrew Ainsworth, a young industrial design graduate here in England, was approached to design a helmet based on a set of drawings.  He spent two days producing the prototype for the helmets used in the film.  No written agreement for the production of these helmets existed. 

Mr Ainsworth retained the moulds which gathered dust for years until 2002 when he sold a helmet and some other items for £60,000 at auction.  Recognising the nostalgic value of these authentic articles, he began selling further helmets based on the original moulds through his website including a number in the US.

In 2004 George Lucas and others issued proceedings against Mr Ainsworth in the US for $20,000,000 on the basis that Mr Ainsworth did not own the Intellectual Property (“IP”) rights in the helmets and therefore had no right to sell them.  George Lucas was successful in his claim in the US courts but as Mr Ainsworth had no assets there, the court battle moved to the UK.

After spending around £700,000 defending the claim, Mr Ainsworth was, on the whole, successful in his defence.

The main issue for the UK courts to consider, which was ultimately decided in the Supreme Court, was whether the helmets qualified as works of sculpture in which case they would be protected by copyright (which lasts for the life of the author plus 70 years) or whether they were simply functional costumes (in which case the protection would be limited to 15 years from the date they were marketed).

The Supreme Court ruled that the helmets lacked the necessary quality of artistic creation required of a sculpture.  The protection had therefore expired and Mr Ainsworth was free to use and sell the helmets.

This case highlights the importance of ensuring that any IP you create or use is dealt with properly and the potentially huge costs involved when it is not.  There are many simple and cost effective ways of protecting your ideas and your business.   

Contact Michelle Waterman for more information on mwaterman@tolhurstfisher.com

Noved Acquisition

Tolhurst Fisher LLP advised Noved Investment Company on its £20 million acquisition of St Martin’s School of Art’s site in Charing Cross Road, London.  This deal was the last in a series of transactions that sees Noved Investment Company set to redevelop a site of almost an acre in the centre of London’s West End for retail, offices and residential use.

Our team was lead by Caroline Homewood, head of commercial property.  Caroline comments, “I am pleased that we exceeded our client’s expectations in effecting a swift exchange of contracts, despite the complexity of the deal and the involvement of four firms of solicitors.”

Tied in to gym membership and want to cancel before the end of the initial period?

Typically gyms tie new members into fixed term contracts for a minimum period of one year.  We all know that new gym members are initially full of enthusiasm and plan to go to the gym several times a week to get fit and stay healthy but enthusiasm generally, for most of us, wanes very quickly and gym attendance drops off.  The High Court recognised this in 2011 by holding, in a case brought by the OFT, that terms in a standard form gym membership agreement which tied members in to membership for a minimum period of 12 to 36 months were unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 as this took advantage of the fact that the average consumer overestimates the use he would make of the gym and would probably not attend the gym at all after two or three months. 

This case does not mean that all such contracts are automatically unfair but, if you are tied into such a contract and want to cancel before the initial period has expired, you may be able to do so.