Understand Your Rights. Solve Your Legal Problems
Ian Roberts was called to the bar in 1996 and now has had the pleasure of being heavily involved in the creation of a new set of chambers: Greenway Chambers. He states that: “[The Chambers] has focused on delivering the highest standard of legal services through recruitment and development of barristers who are leaders in their respective fields.” Lawyer Monthly discusses with Ian more about how he progressed throughout the years, the lessons he has learnt and his predictions for the Australian legal sector.
You have been ‘raising the bar’ since 96, what would you say has been your biggest case during that time?
What is the “biggest” will mean different things to different people. To lawyers biggest often means the most legally significant, which is usually the most satisfying.
Some time ago I appeared for the defendant in Newcastle Port Corporation v Pevitt (2003) 58 NSWLR 548. It was a case that concerned a fairly narrow question about whether the limitation fund constituted pursuant to the Limitation Convention 1976 included the costs of the action in which the limitation of liability was relied upon following a collision between the pilot vessel, the John Hunter and a fishing boat. The issue was interesting because, surprisingly, it had not been dealt with in any jurisdiction anywhere in the world, as far as we could determine. It was important in that case because, as the amount of the fund was determined by the tonnage of the (relatively small) John Hunter, if the costs were included in the fund, there would have been little if any money left in the fund for the severely injured plaintiffs after the costs were paid.
Ultimately, the Judge found that the fund excluded the costs of the litigation for the reasons I argued at trial. Unbeknownst to us at the time, a very similar case was being dealt with in the UK and, although neither judge knew of the other case, each reached the same conclusion for consistent reasons.
What’s the most surprising lesson you impart with your peers?
The importance of being organised. This comes from early and thorough preparation, being on top of the chronology as well as identifying and understanding the real issues. There is a sense of control that comes with a properly prepared case.
What steps have you taken to improve the benchmark of legal services throughout the years of practice?
Over the last 20 years since I began at the NSW Bar, the standard of advocacy has steadily improved and continues to do so. When my career began, advocacy was rarely, if at all, taught. The attitude tended to be that advocates were born and not made, and they were left to their own natural skill, wit and ability. Sometimes that was enough, but more often than not it was insufficient. Advocacy is now taught throughout the Australian jurisdictions at both entry stage of practice at the Bar as well as throughout the careers of all advocates. The shift in attitude from advocates having to rely on a natural ability, to treating it as a skill that can be learned and improved on, has without doubt increased in the standard of advocacy; I have always had an interest and an involvement in the ongoing education of barristers and aspiring lawyers through various programs from High School mock trial competitions, university moots and the NSW Bar Association’s readers’ course.
What current challenges do you see the legal profession in Australia facing in five years’ time?
The cost of litigation continues to outpace the cost of many other professional services. If that trend continues the profession will be left with very few potential clients with the ability to fund complex litigation. The profession needs to develop the ability to offer more for less. One way of responding to the shifting legal market is to make better use of technology. Lawyers have traditionally been slow to pick up technology and when they do it has been often using technology for technology’s sake. However, the legal profession is currently undergoing a quantum shift in the way that legal services can be delivered. It is important to look how technology and innovation can be used to achieve better outcomes for clients.
Most people would say let’s look at the solution rather than what or who caused the problem, but you find particular importance of identifying why a particular legal problem exists; can you explain why?
The common-law system of precedent is based on principles derived from earlier decisions; often those decisions are very old. I have always had an interest in history and in addition to looking at the legal principles that emerge from the authorities, I am also interested in social, economic and political circumstances that drove the decisions. The social attitudes towards issues like labour supply, gender, wealth, property ownership, death, indigenous rights and so many others have changed substantially during the development of the common law and, in many cases, in the last 50 or 100 years. Those attitudes often explain why a court has leaned in a particular way in dealing with the issues it has had to determine. Understanding that history often leads to a better understanding of the significance of decision.
[vc_row][vc_column][bs-grid-listing-1 columns="2" title="Editors Picks" show_excerpt="1" hide_title="0" count="6" post_ids="14094, 14195, 14170, 14033, 14141" tabs="" tabs_cat_filter="" pagination-show-label="1" pagination-slides-count="1" slider-animation-speed="750" slider-autoplay="1" slider-speed="3000" bs-show-desktop="1" bs-show-tablet="1" bs-show-phone="1" _heading_1="" _heading_2="" paginate="none"][/vc_column][/vc_row]
For Tatiana Sergunina intellectual property has always been an interesting sphere of law she dreamed of when she was a student. Her dreams are now fulfilled as she helps people to protect their intellectual rights; in this insightful interview, we see her passion being wonderfully expressed whilst detailing the movements in Russia’s IP legal sphere and where she hopes to see it advance to.
Have there been any recent developments in Russia regarding IP law and what developments do you hope to be implemented in the future?
Three years ago, in 2014, Part 4 of the Civil Code of the Russian Federation "Intellectual Property Governing Law" was considerably amended. For instance, instead of registration of agreements, we started registering transfer and provision of rights, the principle of fault-based liability of the intellectual right violator was established, the terms of sub-invention, utility model and industrial design were introduced; violation of patent rights now implies a penalty in the form of compensation and the list of essential features for industrial models was removed.
Besides legislative changes, several meaningful court rulings of the supreme judicial authorities of Russia have recently been adopted. For example, in 2015 the Supreme Court of the Russian Federation determined that in case the right holder does not use its trade mark, its action related to recovery of compensation from another entity using any similar mark are regarded as abuse of right.
At the end of 2016, the Constitutional Court of the Russian Federation issued a decree in accordance with which the amount of compensation for violation of exclusive rights can be reduced as compared with the minimal limits stipulated by the legislation. This regulation will cause changes of the current legislation.
Such judicial precedents considerably influence the judicial practice, our professional community. We learn to work according to these new rules, communicate these positions to our customers, use them by developing strategies for our cases.
For example, in April, the Supreme Court will consider one of our cases and express its stance on the issue to whether it is possible to reduce the compensation amount as a double cost of counterfeited product. Until now, one applied the court rules in accordance with which such a compensation could be reduced, however due to heightened interest, the Supreme Court may express an opposite opinion.
What has been your most challenging case yet and how did you overcome that?
It was a patent dispute. Our client filed a lawsuit to prohibit use of the utility model; their opponent admitted using the model, however referred to the fact it held a prior common law right. The case implied the fact that the opponent did not manufacture, but only sell the disputed products. The issue whether the seller can acquire a prior common law right was not previously settled in Russian practice. After holding several difficult court sessions, we managed to prove that the prior common law right can be acquired only by the product manufacturer; this viewpoint was established by court ruling in the end. As a result, we won the case and the counterclaim to recognise the prior common law right was fully dismissed.
What are they key aspects you look at when taking on a case that challenges RUPTO (Russia’s Federal Service for Intellectual Property)? How do you know when a case is strong enough to challenge this?
Most frequently, we go into litigation with RUPTO when it deals with cases on challenging the decisions made by the Chamber for Patent Disputes of RUPTO. When challenging them, we consider what factual circumstances and documents were disregarded and pay attention to if RUPTO performed any procedural violation when considering the case. If there are any of the above-mentioned circumstances, we admit that the decision is not strong enough and can be challenged in court.
Furthermore, it is not possible to file for falsification of documents in RUPTO, however it is possible in court. One is prohibited to make references to unfair competition on behalf of trademarks or patent owners in RUPTO, and there is such a possibility in court. All this significantly strengthens our positions in court.
There is another problem related to the fact that sometimes RUPTO deals with settlement of disputable issues in a very formal way. The court can be more flexible in this respect, which is frequently secured by us when going into such litigations. In the whole, RUPTO and the Court have different approaches to the same questions, and that is what we successfully apply.
With technology rapidly developing, how much pressure is this placing on copyright laws? How do you expect it to develop and change in Russia, and internationally?
Not long ago, a package of resonant anti-counterfeiting laws governing protection of copyrights on the Internet was adopted. The first law took effect on 1 August 2013. It allowed pre-trial blocking of websites positing unlicensed audio-visual products.
Currently, the law governs a pre-trial procedure of limiting an access to information distributed with violation of copyright and/or associated rights. This sphere also includes issues related to book publishing, music and a set of other sphere of intellectual rights, except for photographic products and products obtained by the ways that are similar to photographing.
Moreover, an expanded version of the anti- counterfeiting law provided for the procedure of "lifelong" site blocking - for a repeated violation. So, for example, in 2015 the Moscow City Court blocked access to a large portal (Rutor.org) and 10 other resources on which counterfeiting content was posted. It was the first "lifelong" blocking of sites in the history of the Russian judicial practice. In general, the Moscow City Court quite willingly blocks websites containing illegal content.
It is obvious that the internet has increased opportunities to violate intellectual rights and it takes only a second to perform an illegal action or even a crime in this sphere. At the moment, our society faces a necessity to govern the issues related to intellectual property protection on the internet by ensuring a balance of interests both of right holders and users who, in their turn, are entitled to access scientific and artistic works.
Noting such a tendency that many states do their best to create such a controlling system, will provide users an opportunity to download licensed works for a small fee: movies, music, pictures, software, etc. It will be more convenient for the user to pay for high-quality content than to resort to the services of suspicious websites providing unlicensed and not always high-quality products. Probably, this strategy can help to improve the legal consciousness of the population, and the problem of violation of rights will cease to be so acute.
What are your clients main concern during a (potential) case, and how do you reassure them?
It depends on the case. It often happens that we have to take an extraordinary position on the case, refer to the clauses for which no stable practice still exists. For example, in a case related to the prohibition of using a trademark where we represent the Defendant's interests, we refer to the Plaintiff's exhaustion. It is obvious that the client worries if the court shares our position. As for the cases on non-use of rights, clients often use a trademark not by themselves but entrust this task to their partners, affiliated persons, which causes certain difficulties by proving use of the trademark, which also bothers the client. In such cases, we refer to the fact that the law allows using a trade mark "under the right holder's control". Thanks to large part of our activity, the practice of this application becomes more homogeneous. We calm our clients by reassuring them that we have the law on our side, whatever we refer to.
You have been in intellectual property for five years now; what are you upcoming goals in the future for your career and clients?
My main goal is to constantly improve my skills and knowledge in the sphere of intellectual property. In spite of the fact that I have been in this sphere for five years now and have had good teachers which allowed me to obtain a broad expertise, many things still surprise me as every new case is a special world, we always prepare the unique position for every new case. In the future, I want to become the best specialist in the sphere of intellectual property in Russia. Intellectual property right is still young enough in our country, which allows us to "create" the practice to a certain extent, and my goal implies the creation of this practice, as it should comply with both legal requirements and the so-called justice of heaven. As for clients, I also try to constantly improve myself to bring our company to a new level of service, the likes of which we wouldn't see in Russia. Certainly, I also make mistakes, sometimes due to stress and a high load, but my objective - self-improvement - shall always be present, otherwise what is the sense in all our work?
An experienced accident attorney will have assisted numerous auto accident victims with their cases that involved vehicle crashes. You want an attorney who has experience with a variety of accidents from minor fender benders to more severe crashes that involved 18-wheel trucks and train accidents.
It’s important to note that statistics convey that most auto accidents are preventable and often predictable. According to the National Highway Safety Administration, over 90% of all car accidents involve a type of human error, mainly, distracted driving.
Two Important Ways to Prepare
Auto accident lawyers will tell you from their experience that there are a couple of initial ways you can prepare yourself while driving in order to prevent accidents. Both of them have to do with being in the right mindset and then using your knowledge of safe driving techniques in a defensive driving manner. Here are the two primary elements to consider:
Stay Focused - Any action that either takes your mind off of concentrating on the road or your hands off the wheel can potentially be fatal. Distracted Driving is often cited as the leading cause of most accidents today. According to the Centers for Disease Control and Prevention (CDC).
There are three main types of distraction:
“Distracted driving activities include things like using a cell phone, texting, and eating. Using in-vehicle technologies (such as navigation systems) can also be sources of distraction.” (CDC)
Expect the Unexpected – When you’re on the road you are dealing with the general public who are people that just like anybody else are prone to making errors and mistakes. There is no way to know for sure what may happen but if you are prepared, have a plan, you can have a better idea of what to expect. Some examples are:
“Traffic crashes are not accidents, but are avoidable events caused by a single variable or chain of variables.” Wisconsin Department of Transportation
Control Only The Things You Can Control
While the actions of other drivers, pedestrians, or road crews is out of your personal control, there are some steps you can easily take to reduce your personal risk of crashing. For example, you can do the following:
1.) Keep your vehicle well-maintained;
2.) Learn to anticipate other drivers’ actions;
3.) Plan your route carefully before you go;
4.) Find a safe way to respond to aggressive driving;
5.) Take an area defensive driving course.
What to do after an Auto Accident
Nobody wants to have an auto accident, but sometimes the unavoidable happens. If you’re in a car accident, first review if you are anyone in the vehicle is injured. that no one riding in the vehicle is injured. Next, be sure any pedestrians, passers-by, or passengers in the other car are safe. Then, you will want to be sure you do the following things to protect yourself and your family.
Note: Never leave the accident site or scene. Even if you are not at fault, if you leave, you could have serious legal consequences, including arrest, fines, or other violations.
Driving safely is a constant thing to keep first and foremost in your mind whether you are behind the wheel or a passenger. There are times, however, when no matter how much preparation you have had or safety knowledge you apply, accidents happen. These comprehensive safety tips provide an excellent overview into ways to drive safely, defensively, and to protect you.
[vc_row][vc_column][bs-grid-listing-1 columns="2" title="Editors Picks" show_excerpt="1" hide_title="0" count="2" post_ids="14052, 14107" tabs="" tabs_cat_filter="" pagination-show-label="1" pagination-slides-count="1" slider-animation-speed="750" slider-autoplay="1" slider-speed="3000" bs-show-desktop="1" bs-show-tablet="1" bs-show-phone="1" _heading_1="" _heading_2="" paginate="none"][/vc_column][/vc_row]
James E. McMillan, Esq. is a New York attorney who has been at the forefront on matters relating to intellectual property and the entertainment industry. Here he discusses the future for online content creators as changes are constantly occurring under the recently appointed Donald Trump.
Amongst the lesser known of Donald Trump’s new appointees is Ajit Pai, whom the US President recently tapped to head the Federal Communications Commission (FCC) and who has promised to abolish the regulations that ensure net neutrality (the concept that internet service providers [ISP] should allow the same access to all content regardless of where that content originates). A former lawyer for Verizon, Pai has built a reputation as a hard-liner on conservative interpretations of telecommunications law and the FCC's limited authority. In fact, Pai has openly disagreed with the net neutrality rules enacted under the Obama administration and has made the repeal of net neutrality rules one of his top priorities. This policy promises to have a profound effect on the entertainment industry where the principles of a free and open market will directly clash with the rights of intellectual property holders (e.g., content creators).
Originally coined by Columbia University’s Media Law Professor Tim Wu, “net neutrality” was initially proposed to protect a free market and discourage discrimination by ISPs. Net neutrality rules encompass competition issues. They centre upon the FCC's policy to classify ISPs as "utilities" and subject them to rules akin to those placed on phone services.
In his 2002 article, "A Proposal for Network Neutrality", Wu suggested striking a balance that would forbid broadband operators, absent a showing of harm, from restricting what users do with their internet connection. At the same time, it would give the operator the freedom to manage bandwidth consumption. Wu recognised an upcoming problem where ISPs could potentially discriminate by treating network traffic differently on the basis of certain characteristics. Wu’s proposal sought to prohibit an ISP’s ability to single out a website and slow ["throttle"] the speed of network traffic to that website; it would forbid users from receiving traffic from that website through adhesive contracts or simply program network equipment to block access to the website.
Recognising this issue, in 2015, the Federal Communications Commission (FCC) approved net neutrality rules that were intended to keep the internet open and fair. The rules prevent ISPs from deliberately speeding up or slowing down traffic from specific websites and apps. In essence, they prevented ISPs from playing favourites. For instance, an ISP like AT&T could potentially allow its own video content to load faster than competing content on a service like Netflix or Hulu. Or, it could force Netflix or Hulu to pay a premium to get its content into the ISP's fast lane - a cost that would undoubtedly be rolled down to consumers.
What are the proposed changes to the net neutrality laws/regulations?
In October 2016, right before Trump was elected, the FCC enacted rules that would have required ISPs to get the user/owner’s permission before collecting and sharing their data on everything from web browsing history to geo-location information. These rules have not, as yet, gone into effect.
More recently, Republican Senator Jeff Flake, one of the leading opponents of net neutrality rules, argued that such regulations are "unnecessary" and "innovation-stifling”. To that end, the Senate passed Joint Resolution 34, taking direct aim at Obama-era net neutrality rules. If passed by the House, ISPs will be allowed to sell user data to third party companies without consumers’ permission. While today, in order for personal data to be sold, ISPs must get user permission by requiring that the user "opt-in," the repeal will no longer require that ISPs obtain that consent. In fact, in order to protect one’s privacy, one must specifically "opt-out". This has significant implications as it will allow ISPs to pair subscriber data to content and build up online advertising businesses to compete with companies like Google and Facebook.
How would/will these changes affect artists?
ISPs like AT&T and Verizon claim that they are being disadvantaged by net neutrality rules. They argue that the FCC's net neutrality rules go far beyond its authority and consequently hurt their businesses. Yet, the repeal of such rules will have a significant impact on content creators and owners of online intellectual property – many of whom might fall under the category of “the little guy”.
Net Neutrality rules were enacted to allow equal access to content on the internet. If the rules are changed, content creators could be discriminated against depending on their content and their use of bandwidth. Content creators clearly benefit from an "open internet", where policies such as equal treatment of data and open web standards allow those using the internet to seamlessly search for, buy, share and stream content without interference from a third party. Conversely, a "closed internet", where large corporations or governments favour certain uses or certain content, restrict access to certain websites, throttle bandwidth to promote their own content or simply filter out certain content, could be stifling to artists.
Pai may have a difficult road ahead, as the United States Court of Appeals for the District of Columbia Circuit upheld the government's position on net neutrality rules in a 2-to-1 decision from a three-judge panel just this past year. This could mean a long legal battle if Pai tries to discard the existing rules.
Artists and other online content creators would be wise to stay abreast of these issues and do all they can to prevent modifications to or the removal of net neutrality rules that might limit their ability to compete fairly.
Duncan McGrath leads the Debt Capital Markets and Securitisation team at Gilbert + Tobin, which is a part of their wider Banking and Infrastructure practice. Gilbert + Tobin is Australia’s leading independent top tier corporate law firm and with a focus on dynamic and evolving market sectors, they work on transactions and cases that define and direct the market. They become the legal adviser of choice for industry leaders who value our entrepreneurial culture and determination to succeed and so we speak with Duncan about the Australian markets and the evolving Fintech industry.
When advising banks and overseas companies on issuing bonds into the Australian markets, what are key aspects you must consider?
The key considerations include whether or not the proposed bond issue will be a one-off, or whether the intention is to issue bonds into Australia on a regular basis as licencing issues may apply. If it is a one-off, there ought to be an existing programme under which the bonds can be issued, noting that changes will likely be needed to enable the bonds to be held in registered form in the domestic clearing system, Austraclear, and a local issue and paying agent appointed. If it is planned to issue with some frequency, it would be more economical to establish an Australian domestic programme.
How difficult is it to marry Australian legal requirements with overseas companies’ aims, whilst having consistency of terms across jurisdictions where they operate? How do you overcome these difficulties for your clients?
Typically, an offshore Issuer would follow existing commercial terms from its EMTN Programme when establishing an Australian domestic programme, excluding those terms that would not be relevant including, for example, representations and warranties and undertakings relating to listing as it is uncommon to list bonds on the Australian Stock Exchange (there being no advantage to doing so in term of tax or other regulatory relief). One key representation that would be amended is the disclosure representation which would need to reflect local law. In practice, this does not cause difficulties for Issuers as the disclosure in the Australian market is significantly more limited than offshore; Issuers have no difficulty in getting comfortable with that they meet local law requirements and that such disclosure is not misleading or deceptive, or intended to mislead or deceive.
How different are the challenges posed when advising bigger, international corporations?
Aside from ensuring consistency of terms, a key consideration is often ensuring the relevant internal approvals are obtained (internationally) in good time and co-ordinating conference calls are at suitable hours for all parties!
When advising overseas banks and other investors who want to purchase bonds issued by Australian companies, what are the key issues they need to consider?
The fundamental consideration is whether or not the Issuer has satisfied the “Public Offer Test” under the Australian tax legislation which, if not satisfied, results in an Australian Issuer withholding 10% on payments of interest under bonds to overseas investors. There are various ways by which the test can be satisfied upon the original issue of the relevant bonds and careful consideration is given by Issuers to ensure that the test is satisfied when the original offer is made.
With the financial market everchanging and being unpredictable, how do you keep on top of trends for the benefit of your clients?
We maintain our currency through the international and domestic transactions we work on, through our interaction with clients and through our own review of market developments both in Australia and internationally.
How has the world of Fintech changed the finance and investing industry in Australasia?
The growth of Fintech is changing the finance and investing industry in Australia in a number of areas from peer-to-peer lending platforms to blockchain. These developments aren’t just the preserve of small start-ups but law firms, including Gilbert + Tobin, and major financial institutions and their other advisers are also participants in the space.
Raphael Prais, lawyer at LHS Solicitors, analyses the European Court of Justice ruling on wearing religious symbols in the workplace, and its implications for businesses across the UK. As you will be aware, the European Court of Justice (ECJ) has given a ruling on wearing religious clothing, such as Islamic headscarves, at work.
Before exploring the ruling in more detail, Raphael states that it remains safer to allow your workers to wear religious clothing or symbols. Banning such symbols may result in a finding of indirect discrimination.
What this ruling says is that if you do wish to project neutral corporate image, and you apply the same rule to every religious and political viewpoint, it might not be direct discrimination, and in some circumstances, it might be possible to justify the rule.
The Context
The ruling relates to two cases, Achbita and Bougnaoui; both cases concern private employers and female Muslim employees. In both cases, there were rules against the wearing of visible religious symbols in the workplace. In the first case, after a few years’ employment, the employee insisted on wearing a headscarf. She was told that wasn’t allowed, and was eventually dismissed.
In the Bougnaoui case, it is less clear whether there was an internal rule against wearing religious symbols – even if there was such a rule it seems it wasn’t enforced until a customer complained. So, the additional issue is whether you can enforce a rule, by dismissing if necessary, because of a complaint by a customer.
It should be added that in both Belgium and France there is a strong public feeling that the public space should be secular. Indeed, full veils have been banned in both countries. It is in that context that these two companies have banned religious symbols. In the UK, pluralism is viewed differently and it would be harder to justify such rules.
What the ECJ Decided
The ECJ decided a rule banning all religious and political symbols in the workplace is not direct discrimination. It would have to be a genuine rule, however – if it was formulated in response to one employee of a certain religion, it may be found to be direct discrimination.
Banning religious symbols may be indirect discrimination if it has a disproportionate effect on a particular religion or belief. The ECJ said that only the national court could determine that question.
Indirect discrimination will not be unlawful if it can be justified in respect of a legitimate aim. That is also for national courts to determine and the ECJ only provided what it calls “guidance”. That guidance suggests that an employer’s desire to project an image of neutrality toward its customers is a legitimate aim – but it would be harder to justify the rules in roles that are not customer facing, and redeployment to such roles should be explored before more drastic action is taken.
Enforcing a rule in response to a customer request not to work with someone wearing a headscarf would be direct discrimination. Direct discrimination is harder to justify than indirect: it would have to be a genuine occupational requirement. The ECJ said that customers’ requests are not genuine occupational requirements.
How Does This Ruling Fit Within the Precedents Set by Previous Rulings?
An interesting question raised by the ECJ’s ruling in this case is whether it is consistent with the European Court of Human Right’s judgment from the January 2013 Eweida v British Airways case.
That case suggested that normally an individual’s right to manifest his or her religion should be given priority over a business’ right to promote a neutral identity.
During the Achbita case, Advocate General Kokkot gave a formal opinion to assist the court in making its decision. Within this opinion Advocate General Kokkot said that Samira Achbita did not face difficulty integrating due to being a Muslim, but due to wearing a headscarf.
Even at face value, this is a problematic proposition. As a Muslim woman who believes she should dress a certain way, Achbita could only integrate if she left an important part of herself behind. Indeed, the same could be said of any employee for whom visible religious clothes or symbols are important. Such employees are affected by a ban on religious symbols in a way that other employees are not.
But what about the business’ rights? The ECJ ruled that “the desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate”.
The ECJ also said that this will principally be the case where employees come into contact with customers, which implies that it will rarely be a legitimate rule if it applies to employees who do not come into contact with customers and clients.
It is clear that business’ rights can come into conflict with the right of individuals to manifest their religion. In fact, The ECJ actually referred to the ECHR’s judgment in Eweida, using that case to support the position that sometimes it will be necessary to prioritise the business’ right to display religious neutrality over the individual’s right to manifest religion.
And that is true. Eweida did say that it is a balancing exercise between the two rights. However, in Eweida it was held that, on the facts of that case, the right to manifest religion should be given priority over the right business’s conflicting right.
To be clear, in this most recent case the ECJ has not made a firm ruling on which right should be given priority, instead stating that it would be for national courts or tribunals to decide. However, it did give guidance saying: “it must be held that the fact that the workers are prohibited from visibly wearing signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner.”
That gives ammunition to businesses that wish to restrict religious freedom, whereas Eweida gave ammunition to individuals wishing to display religious symbols.
The Effect on UK Law
Banning all such symbols was never likely to be considered direct discrimination. As Dr Vakulenko, an expert on the Islamic dress in legal discourse, says: "although it might be argued that it's direct discrimination because it affects adherents of religions more than it affects secular employees, the courts were unlikely to interpret direct discrimination that way. On the other hand, such a ban would almost certainly result in detriment to certain groups whose religions have a stronger material component, prescribing an outward appearance as well as a direction of the heart. And as the UK traditionally prefers a pluralist approach, such a ban could be hard to justify over here."
Whether a ban on religious symbols is justified will always depend on the circumstances. In the UK, businesses generally promote diversity and justifying a ban would be difficult.
When justifying indirect discrimination, it is always a balancing act – on the one hand, there are the needs and rights of the employer; on the other hand, you have the rights of the employee to be treated equally to others and also, under the European Convention on Human Rights, to manifest religion.
And remember – to even reach that stage, the business would have to convince the tribunal that the “policy is genuinely pursued in a consistent and systematic manner”. Even more so, enforcing the policy in response to requests from customers is very likely to lead to a finding of unlawful direct discrimination.
Employers thinking of banning all religious or political symbols in the workplace will need to ensure they apply the same rule to all viewpoints, and make sure it can be justified by reference to a pre-existing policy of religious neutrality.
Even then, given the potential conflict between the ECHR Eweida ruling and the recent ECJ ruling, and the culture of diversity and pluralism prevalent in the UK, it is certainly safer for employers to allow religious clothing and symbols in the workplace.
Samantha Hamilton is a Solicitor and Head of the Private Client Department at Mullis & Peake LLP; she is also on the Office of the Public Guardian’s Panel Deputy list. This means that where there is no other suitable person to be appointed as, the Deputy the Court of Protection can appoint one of the 71 Panel Deputies to act. This is often in cases of family disputes, where financial abuse is suspected or where there are large sums of money to be managed. The last example will often be cases where there has been a large award of damaged for a personal injury or medical negligence. The Court of Protection prefers a professional deputy to be appointed to manage these large sums of money. We speak with Samantha about her role as a Court of Protection specialist and when people should seek a Deputy to act on their behalf.
Can you outline what outlines ‘the lack of mental capacity’ for an individual needing Court of Protection?
Under section 2 of the Mental Capacity Act 2005 “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” This can be a permanent or temporary lack of capacity, so there will be cases where a person recovers capacity and the Deputy is discharged.
Lack of capacity can be caused by an illness, such as mental illnesses, dementia or a stroke, or by an accident or injury. Some never have capacity as a result of an injury at birth or because they are born with a learning disability. Others acquire an injury or develop an illness during the course of their lifetime. In the latter cases, the Court of Protection will not need to appoint a Deputy if the person has a valid Power of Attorney. I encourage everyone, of whatever age to consider making a Lasting Power of Attorney to ensure that they appoint the person or people they would wish to act for them in the event of incapacity.
I often give seminars to local groups, charities and staff training. At one of the groups, one of the attendees likened a LPA to a fire extinguisher – you buy it hoping you will never need it. This is a perfect analogy.
What challenges do you face when acting for a case under Court of Protection and how do you overcome this?
Acting as a Deputy in Panel cases is challenging, as you rarely have much information until after you are appointed. It is a case of rapid assimilation of information about the person’s finances, care needs and personal situation. It also means the Deputy can be dropped into the midst of a family dispute, or have to act quickly to secure assets that may have been misappropriated. Every case is different, which makes the work interesting, but it is important to tailor the approach in each case to the client’s particular situation.
It is important from the outset to make it clear to all other parties that my sole responsibility is to act in the best interests of my client. I will not “take sides” and must remain independent as far as possible. It is also important to be sympathetic in some circumstances, but in others assertiveness is required. The ability to adapt the approach depending on the circumstances is a vital skill.
It is rewarding to be able to make a difference to the client’s life and to ensure that they receive the appropriate care and that their financial situation is secured.
How do these cases differ to your alternative Private Client work and how do you adapt to this change?
I specialise in Court of Protection work, but I have dealt with other Private Client work, such as Wills, Probate and estate planning. Whilst the more common types of Private Client work involve you in the client’s personal affairs, acting as Deputy embroils you in every aspect of their lives, from medical issues, management of carers, financial budgeting and household management.
It is important to recognise the importance of the work you do in every aspect of the client’s life. There is often more urgency involved in these cases and crises occur even for the clients with the most straightforward of circumstances. It is vital that a Deputy can cope with this, both in terms of time and the ability to deal with a wide range of issues.
We work closely with Social Services, the NHS, care providers and other organisations to ensure that the client has all the help and support they need.
Having a team of experienced staff who are able to assist is imperative, as is a list of reputable and reliable contacts able to deal with the various issues that arise each day. This can range from burst pipes and roof damage by storm(s) [Doris], to finding emergency carers or liaising with medical staff and police to track down a vulnerable missing person using my access to bank transactions. This knowledge and these contacts and skills can only be built up with time dedicated to this type of work.
What do you think makes a suitable Deputy for Court of Protection? What should potential clients look for in someone who will be acting for them?
A Deputy needs to have the time, expertise and knowledge to be able to manage every aspect of the client’s affairs. In many cases a family member will be able to act as Deputy, as long as they recognise the duties and expectations of the role. However, where the family is fractured, or where the finances to be managed are complex, an independent professional may be more suitable.
Anyone appointed as Panel Deputy has been assessed as being suitable to act, having the relevant skills, knowledge and expertise. The appointment is made following an application, interviews and Disclosure and Barring (DBS) checks and is monitored by regular audits and supervision by the Office of the Public Guardian. Therefore, potential clients would be secure in looking for assistance from Panel Deputies.
What considerations must be made when making a statutory will on behalf of someone else?
A Statutory Will can be made where the Court of Protection agrees that it is in the person’s best interests to create a will, or amend an existing will. The Court needs to be persuaded that making the Will in a particular way is likely to be what the person would have wanted, if they had capacity. The Court examines the person’s finances, family situation and past behaviour to determine what the Will should include.
Some families conclude that the intestacy rules are sufficient to deal with the person’s estate, so no application for a Statutory Will is required.
In regards to the above, what common misconceptions can clients have when seeking Court of Protection?
Clients may be concerned about the involvement of a Court, but are often reassured when it is explained that most applications to the Court of Protection are made without a hearing. However, many potential deputies underestimate the responsibilities of the role and are concerned about the requirement to report on all financial transactions on an annual basis. At Mullis & Peake LLP we are able to assist Lay clients with the completion of the annual returns to assist with this duty.
Ethan Eisner has general management responsibility for leading the global commercial markets businesses, as well as overseeing global strategy and M&A for the Reed Tech division of LexisNexis. Providing great insights and unmissable advice, Ethan discusses with us how utilising data analytics can allow companies to construct better strategies, how to ensure you are patenting correctly and what businesses ought to do to ensure they have competitive advantage.
What is the most common mistake that companies make in regards to their patenting?
Numerous companies use the same strategy across their portfolios when deciding how to amend claims, regardless of the allowance rate of the examiner. During the patenting prosecution process, the more strategic companies look at the specific examiner they are assigned for every application. If they have an examiner that is extremely likely to offer a quick allowance, then there is no need to make an aggressive claim amendment early in prosecution. In the end, this will lead to a better and more valuable claim set for the allowed patent. On the other hand, companies facing examiners that typically require many office actions before an allowance, make the mistake of repeatedly amending claims in response to rejection after rejection.
Companies should use pilot programs, appeal and other available options strategically based on the characteristics of the examiner with whom they are dealing. All of this is to say that companies that are not data-driven generally do not optimize their approach to patent prosecution. In the end, they end up with less valuable patents and a more expensive prosecution process.
When it comes to patenting, how has increased use of technology impacted the protection of unique inventions?
Data analytics now enables companies and law firms to see trends that were never possible before. Being able to see and understand these trends allows decision makers to have a more optimal approach to patent drafting to better protect their patents. The exact way a patent claim is constructed is central to patent litigation. It is now possible to dissect allowed patent claims and analyse claim elements for both literal and conceptual matching. Patent attorneys can now find elements within their claim that lack or have vague antecedents and quickly find prior art and case law references to the key elements. Starting to protect patents in the drafting stage is obviously much more cost-effective than doing so in patent litigation.
Patentability searches have improved tremendously over the years through the integration of technological enhancements in prior art search tools, including advanced queries and filtering techniques utilising big data processing and related analytics. As a result, patent practitioners and patent examiners alike are able to utilise refined prior art search tools to arrive at sound determinations of patentability more effectively and efficiently.
In combination with the knowledge from prior art search results, there are now sophisticated patent application preparation and prosecution workflow solutions. Such solutions are extremely beneficial from a patent preparation and prosecution perspective in that they provide for automated detection of claim anomalies, improper part recitations, and file history analytics. As a result, patent practitioners are able to facilitate arriving at patentable subject matter more quickly, to streamline the patent preparation and prosecution process, decrease pendency times, save costs, and obtain higher quality, stronger and more defensible patents.
How can utilising data analytics allow more strategic decisions to be made for companies, regarding patents?
I referenced patent analytics for patent prosecution and drafting above but patent analytics can help companies answer a variety of key strategic questions in patent litigation as well. In the realm of litigation, the utilisation of patent analytics enables patent practitioners to conduct better pre-litigation and litigation analyses and achieve better outcomes by uncovering critical insights across patent portfolios containing large aggregates of data, including: identifying strengths and weaknesses subject to exploitation; pinpointing changes that occurred during prosecution; and invalidating asserted patents by uncovering difficult to find, but highly relevant, prior art references having alternative terminology with patent thesauri.
When it comes to patent litigation, there is significant risk and costs ramp up quickly. In this case, data analytics are even more central. Since so much of this litigation occurs in the US, it is vital to view data from US district court, Patent Trial & Appeal Board (PTAB) and International Trade Commission (ITC). Information is available to be able to compare and evaluate court venues, judge tendencies, and the performance of different law firms. This type of information can help shape a company’s litigation strategy. Good counsel armed with data analytics can enable more productive strategies.
What would you recommend the next steps to be for those who notice potential hurdles in their strategy for competitive gains?
More strategic patent prosecution and drafting will allow companies to be more cost-effective and reduce their patent spend. There are still many companies that have not adopted data analytics within their patent departments. Companies moving forward are realising it is a competitive advantage as they can achieve both better outcomes and cost savings. During the patent drafting process, there are data analytic tools that can virtually decimate the number of rejections a company will receive and help ensure a patent being granted which is less likely to be litigated. When companies can obtain patents strategically with limited amendments, fewer errors and at a lower cost, they absolutely have a competitive advantage. There is a tremendous opportunity that awaits those that take the initiative and optimise now.
Patent analytics can also be leveraged to determine the relative strengths, weaknesses and opportunities of competitor patents and published patent applications ripe for exploitation. When conducting due diligence with respect to clearance searches and freedom to operate analyses, patent analytics can be leveraged to quickly obtain post-issuance activity status update reports that include insightful information such legal status, notices of litigation, notices of requests for reexamination, withdrawals, reissues, re-examinations, and disclaimers. Competitor patents can be invalidated by uncovering with patent thesauri difficult to find, but highly relevant, prior art references reciting alternative terminology drafted by clever lexicographers.
How should these solutions be tailored fit for each individual company?
Every company files applications within a limited set of Group Art Units. Each Group Art Unit handles a different technology category. Companies have the opportunity to get to know and statistically understand every examiner in the specific art unit groups that are relevant. Not only can you get to know the specific examiners and their tendencies, you can see how subsections of examiners within the same group collectively exhibit very strong decision making patterns. Once you see how your specific art units are operating, once the light goes on, it becomes difficult not to get better results.
Should larger corporations make further considerations regarding their patents, compared to smaller companies?
It used to be the shotgun verse the rifle approach. Big companies had the luxury of filing many applications in the hope that some of them hit the target, whereas many startups were reliant on one or a few targeted patents applications. Now even large companies are for the first time trying to optimise how many hit the target. Patent departments are now being held accountable for results. In addition, there are more ways now to knock out low quality patents (e.g., pre-issuance submissions, IPRs, PGRs, and the PTAB, which is relatively hostile towards patent proprietors). Furthermore, lower quality patents can be surfaced more readily by Patent Quality algorithms available in the information marketplace. Even in the relatively short-term, larger companies can realize a competitive advantage by being more strategic and leveraging patent analytics in their favour to achieve better outcomes. That being said, startups cannot afford to fail. Data analytics and employing a tailored strategy to their business can likewise give them a better chance at hitting the target. Data analytics can level the playing field for them so they can be more strategic and cost-effective in their patent drafting and patent prosecution.
