Understand Your Rights. Solve Your Legal Problems
UK Prime Minister Theresa May has under two weeks to rescue the Brexit negotiations. Last weekend, Sir Keir Starmer QC MP, Labour’s Brexit spokesman and Shadow Secretary of State for Exiting the European Union, hinted at the possibility of his party voting a no-confidence move if May doesn’t move forward the Brexit talks to trade and transition.
Along with Liberal Democrat Spokesperson for Exiting the European Union and International Trade Tom Brake MP, Sir Keir Starmer is now to give evidence to the House of Lords Constitution Committee as part of its legislative scrutiny of the EU (Withdrawal) Bill.
The Constitution Committee has already raised its concerns with the Bill in particular the lack of legal certainty, excessive powers granted to Ministers and the need for meaningful scrutiny by Parliament.
The evidence session will start at 10:15am on Wednesday 29th November in Committee Room 1 of the House of Lords. Tom Brake will speak at 10.30am, and Sir Keir Starmer MP will speak at 11.10am.
Questions will focus on legal certainty, supremacy, the Court of Justice of the European Union (CJEU), the Charter of Fundamental Rights, and devolution. Questions are likely to include:
What do you consider to be the implications of the Bill for the balance of power within the Union and the future of the devolution settlements?
(Source: The House of Lords)
Government parking fines, permit fines and speeding fines are, to the public’s expense’ all very legitimate.
But the latest figures show councils across the UK have been raking in the profits as drivers were hit with £1.6 billion in parking fines alone last year. This figure sits as a record revenue to councils, as they made £840 million in profits, across 353 locations in the UK.
This is a 10% jump from the previous year, which had already seen a 40% jump since 2012-13. The biggest rise in profits comes from street parking and permits only fines. A report released in 2016 did show that councils had increased their fines by around 51% since 2011. This is often case the result of cuts to other budgets.
The figures, released as part of an analysis for the RAC Foundation, show that the government’s local councils are very much one-upping drivers with fines across the nation. According to the Daily Mail, Tory MP Sir Greg Knight recently accused a number of UK councils of using parking as a “revenue-raising exercise” and portrayed the rise in profits from such fines as a “stealth tax.”
Sir Greg says councils “need to reflect whether their charges are fair and reasonable.”
“In some cases, higher charges may be driving more motorists to shun cities and towns and to go to out of town shopping centres where parking is plentiful and free. Councils should be particularly careful before increasing residents’ parking fees – because here motorists don’t have a choice where they park. It could be argued this is a stealth tax on residents.”
Although councils set out legitimate fine systems, so that driving and parking can be managed in the most efficient and fair way for all drivers, increasing fines to these profits extremes raises some questions in regards to the aim of said systems.
Did you get fined at all this year, or did you get your money’s worth of fair parking? Let us know in the comments below.
A Co-op Funeralcare branch in the UK has been accused of leaving bodies to rot in the heat, absent of cold storage.
With grieving loved ones confident their deceased’s body is being taken care of, this Co-op Funeralcare branch in Windsor, UK, allegedly left corpses to decompose during the summer heatwave, in the back of the building.
An ex-employee and whistleblower, Ellen Brown, told the Daily Mail the branch’s behaviour is a “blatant disrespect of the deceased.” She reportedly stated that the branch had a backlog of funerals and couldn’t cope with a lack of staff. This in turn resulted in bodies being delayed for longer, and for the rotting to kick in, as they lay in the back of the branch at temperatures of up to 25C (77F).
In one instance, she described a corpse as having maggots, and in another, a coffin leaking bodily fluids. In another case, Miss Brown said a family was unable to “kiss goodbye” to their dead relative, given the now rotted conditions of the body. The store has allegedly admitted to storing one body in the back of the Windsor branch for as much as 20 days in July, which was a peak month for temperatures in 2017.
The branch unfortunately did not have cold storage. Miss Brown said: “They had nowhere to put the bodies in Slough as the storage was full, so they would bring them to Windsor long before the funeral,” according to the Daily Mail.
She continues: “Really this should only have been done for viewings or just one day before the funeral. Yet we had bodies in our holding area for weeks. The room would sometimes get as hot as 25C (77F), kept in those conditions it is impossible to preserve the body. Because of that some families were unable to view their relatives.”
There aren’t any strict laws on allowing a body to rot unfortunately. According to the Good Funeral Guide, in the UK It is unlawful to:
But there’s no mention of storage. The Health and Safety Executive (HSE) says corpses being maintained for 48 hours or more are advised to be stored at 5C (41F) or less. For some however, ‘closure’ with their deceased family has been taken away from them.
What’s your take on this? Let us know in the comments below.
Michel Barnier, chief Brexit negotiator for the European Union, made comments Monday in Brussels on the legal consequences of Brexit. Bloomberg's Emma Ross-Thomas reports on "Bloomberg Surveillance."
A divorced couple are still fighting in court after 25 years and closure has still not been found. Below, Lawyer monthly hears from specialist family lawyer, Lindsay Yateman at Excello Law, who examines the case and argues that one must seek to look at the bigger picture for this and other family cases, in order to understand the nuances and details of each matter.
The case of Jarndyce and Jarndyce, as Charles Dickens called it, is well-known to every student of Law and of English Literature as an epic legal battle. An entirely imaginary dispute derived from his fertile imagination, it forms the centrepiece of Bleak House epitomising the very slow movement of the law that was a very real problem in mid-Victorian England.
The disputed money at issue between the parties, a large inheritance, becomes slowly but surely eroded over many years of litigation in the Court of Chancery - until there is nothing left in the estate because all the money has been entirely consumed in lawyers’ fees.
More than a century and a half later, the legal world has moved on considerably. But the contemporary case of Carole Hayes and Timothy Hayes (Hayes v Hayes) has definite echoes of its fictitious predecessor. Mr & Mrs Hayes were granted a divorce which became absolute in 1991 – 26 years ago. Yet more than a generation later, the two parties are still battling it out in court over alleged undisclosed assets.
Despite the fact that Mr Hayes has remarried and Mrs Hayes has a new partner, it has consumed their lives. As Mr Justice Nugee put it in a 2014 judgment ‘Unfortunately, they have been embroiled in numerous disputes.’ He went on to say: ‘The common theme throughout has been the defendant's repeated allegations that the claimant has hidden monies in the order of £750,000 to £1 million abroad, a "pot of gold."
Among several different actions launched over the years, Mrs Hayes issued a bankruptcy petition against Mr Hayes, while Mr Hayes has litigated against Mrs Hayes and her new partner, claiming damages for harassment, that they had maintained “an unrelenting campaign” against him and his current wife.
For a divorce case, or indeed any case, to be so protracted is highly unusual. However acrimonious the dispute, most people would definitely want to end such tortuous litigation and simply get on with their lives. Of course, every case is different. And divorce is distinctly personal. We must therefore look at the bigger picture for this case and other family cases in order to understand fully the particular nuances and unique details.
In some cases, and in particular the Hayes’ divorce, litigants have to draw a line and say enough is enough. While the motive for continuing the case is unclear in the context of the Hayes matter, the costs of litigation, which span many years, must already have, or at some point certainly will, become disproportionate to the potential ‘rewards’, or money to be uncovered.
The court procedure in Financial Remedy applications means that approximately 90% of all cases settle at the Financial Dispute Resolution hearing, which is akin to in-court mediation, rather than go to a final hearing when a judge determines the outcome.
The continued dispute in Hayes v Hayes has already, and will probably continue to prevent both parties from moving on. The same seems to apply to some members of their wider family. If litigation is stressful at the best of times, then wilful engagement in protracted proceedings that seem to have no end, then the emotional toll that this must have had on all those involved is immeasurable.
Whereas the Jarndyce case was the fault of the lawyers and the prevailing legal system, this is a case where it could be said the divorced couple appear to remain obsessed to the point of absurdity - a case of ‘litigation overload.’" Dickens wrote that ‘Jarndyce and Jarndyce drones on’ - so does Hayes v Hayes, making for a very bleak house on both sides.
More work is needed to address judicial diversity and issues with recruitment that threaten the UK’s world-renowned legal system, the House of Lords Constitution Committee has warned.
The Committee has examined the progress made on judicial recruitment and diversity since its 2012 report on Judicial Appointments.
The Committee says that:
The Committee makes recommendations for improving diversity in the judiciary, including that:
The Committee recognises that it takes time for changes already made to make a difference, and welcomes the recommendations which have been implemented since its 2012 report, including:
Commenting on the report Baroness Taylor of Bolton, Chairman of the Committee, said: “The UK has one of the finest judicial systems in the world. However, we have found an alarming number of factors are currently affecting recruitment to the bench, and we are deeply concerned about the impact they are having on the retention of current judges and the attractiveness of the judiciary as a career for potential applicants. To maintain our gold standard legal system we need the best and brightest candidates coming forward for judicial appointment.
“One of the fundamental principles of our judiciary is its independence and it is the constitutional duty of the Lord Chancellor to uphold and defend that principle. Judges must be free to decide cases without fear of personal criticism from the media.
“The Committee is concerned about the lack of diversity on the bench. It is disappointing that progress on diversity has been limited since our last report, as it is important for both the health and the perception of our legal system that we have a judiciary that is representative of the society it serves. We urge the Lord Chancellor, Lord Chief Justice, the Judicial Appointments Commission and the legal profession to monitor progress, and look for new ways to improve and encourage diversity.”
(Source: The House of Lords)
Freelance, corporate or public sector? Choosing a legal career can be a daunting turning point in your life. Below Ken Cutshaw, President and CEO of GCG, talks to Lawyer Monthly about how law students and young practitioners can break into the government sector and beyond.
The traditional legal career path, whereby a law student graduates, joins a law firm and litigates his way from associate to senior partner, is not for everyone. Thankfully, today’s global and connected economy presents many avenues for young lawyers to leverage their law degrees outside the traditional law firm environment.
One such avenue is the government sector, which has law students clambering to break through, courtesy of the international political climate.
The American Bar Association asserts that government and public lawyers make up one-eighth of the legal profession. If that career path rings slightly too conventional, consider the countless government sector alternatives to which individuals with law degrees are given priority: politician, legislative director, compliance advisor, lobbyist, and FBI analyst, to name a few.
Breaking into the government sector can be challenging and is seldom achieved without a unique combination of grit, foresight and perseverance. Law students and young practitioners who think a career within the government could be a fit should consider the following, which will help them break through the barriers that exist at nearly all points of entry.
Know who you are. First, one must understand the nature of government and its bureaucratic operating structure and recognize whether he or she is capable of functioning within its boundaries. There are certain personality traits that enable individuals to thrive within the confines of a strict, formal hierarchy. By and large, successful legal professionals working in government are comfortable taking direction, able to accept authority (sometimes without question), deferential when warranted and possess a fair amount of professional confidence. These qualities provide the foundation on which a successful career in the government sector may be built.
Find a mentor. A mentor’s guidance is among the most tangible resources for young lawyers, both those breaking into the government sector and those weighing whether it is a good fit. Trusted mentors will share their unfiltered assessments of the field and its players, provide guidance through arduous professional situations, and may open the doors to future career opportunities. If you are unsure where to start, check with your university; most have programs that connect students and recent graduates with alumni mentors in specific fields. Search for 2-3 mentors working in the government sector, introduce yourself, and invite them for coffee. Approach these conversations as you would a job interview – professionally and with the objective of creating a long-term and mutually beneficial relationship. Once you find someone with whom you share a good rapport, cultivate that relationship by keeping in touch and looking for ways to demonstrate your appreciation for their time.
Join a campaign. Whether you plan to pursue a political career or not, hands-on experience within a political campaign will prove invaluable from both educational and networking perspectives. The government sector and the politicians who comprise it are linked inextricably; an intimate knowledge of politicians and their campaigns will beget a more holistic understanding of the government and how it functions. Start by volunteering for a local campaign – a city council or state senate race will welcome additional boots on the ground. Then, leverage your time in the campaign environment by asking questions, building your network of driven professionals, and weighing whether this could be a viable career path. This type of grassroots approach will strengthen your knowledge base and, ultimately, enhance your marketability.
Serve the community. The civic nature of government service requires a different type of resume than a more traditional legal career. While law firm and judicial internships will always be impressive, spending time in community service can provide measurable benefits, both for those hoping to break into the government sector and for the communities they serve. It is important for those in elected positions – and the people in their employ – to demonstrate to their constituents a commitment to public service, to furthering and improving the lives of those less fortunate, not just in word but in practice. Activism can take many forms, such as volunteering for a local cause or penning an op-ed about a policy proposal with local impact. In short, always be on the lookout for ways to get involved, to give back, and to make a positive difference.
Legal professionals situated at all levels of government are invited to play a central role in decision-making of the highest civic importance. They influence policy, interact with and advise world leaders, and make recommendations to preserve the constitution and the citizens’ rights it protects. A career in government is, without question, an exhilarating professional pursuit, and taking these steps will help ensure the doors are open to you when the time comes to step through them.
Lawyer Monthly hears form Susan Hall, a Partner and specialist lawyer in intellectual property and information and communications technology at national firm Clarke Willmott LLP, who reacts to the latest news that Uber concealed a huge data breach affecting 57 million users and drivers in 2016.
The news that Uber suffered a substantial data breach last year, and subsequently concealed it from regulators and those affected is very worrying indeed but what I find the most important and interesting aspect of this is how the breach arose.
Hackers accessed Uber’s private development area within GitHub, an online resource for developers - they essentially went in through the tradesman’s entrance.
From here they were able to obtain authentication and login details for Uber’s Amazon Web Service (AWS) account, a cloud computing service used by Uber to store data for back-office software development. Once into AWS the hackers accessed a large cache of hosted driver and customer data and then blackmailed Uber with the threat to release this data.
There is a huge issue there and this particular method of hacking – a back office hack - is an important lesson in the dangers of using Cloud computing for IT development. There are two glaringly obvious questions – why was it possible to access Uber’s AWS account at all via its GitHub, and why was development apparently being carried out using ‘live’ rather than dummy data?
While the common weakness in most hacks is the human factor, it’s tempting to think of this as unsophisticated users falling vulnerable to people with much greater technical knowledge. This does not seem to have been the case here. It seems more likely to be a case of Uber’s IT developers being careless and making use of short cuts which exposed the company to the kind of security risks which occurred here.
I imagine Amazon Web Service may be looking at enforcing its own terms of use against Uber: typically a hosting services provider puts the onus on its customers to safeguard its logon information and passwords. AWS are presumably also looking to see whether this hack might have been used as a bridgehead for further attacks on other AWS customers.
By concealing the hack and paying off the hackers Uber breached US laws which require notification of people who are the victim of data compromises (similar laws will come into the UK in May 2018).
Furthermore, they impeded the ability of other organisations caught up in the hack to check how far their own systems had been compromised.
‘The secret of success in life is to eat what you like, and let the food fight it out inside’ – at least, according to Mark Twain. But, what happens when the fiercely competitive food and drink industry starts a legal fight on the outside? Here Wayne Beynon, an intellectual property expert at Capital Law, delves into three major food trademark disputes that caused a stir in the food industries.
Trademarks don’t apply to food and recipes, but problems do arise with product names and branding. There’ve even been examples in the past where companies have challenged competitors for copying the taste, or flavour, of their food.
Brownings v Kilmarnock FC
Protecting their (often very lucrative) brands is vital for football clubs, an important issue that can even extend to their match day snacks.
Kilmarnock Football Club made headlines last year when it became involved in a legal row over the naming rights to their award winning ‘Killie pie’. The feud, sparked when catering suppliers Brownings applied for the Killie trademark behind their back, resulted in the club severing ties after a 13-year relationship.
It’s no surprise, then, that Aberdeen Football Club who play their home games at the Pittodrie Stadium wanted to make sure that their famous ‘Pittodrie Pie’ was theirs to use if they ever changed supplier. They became the first football club to register a pie sold at a stadium and, earlier this year, were granted a UK registered trade mark.
Witches v Magic
The Dutch recently sparked a discussion around ‘taste copyright’, when a popular cheese spread became the focus of an IP claim because of its distinctive taste.
Levola, the producer of Heks'nkaas, announced that it would seek to claim and enforce copyright in the cheese’s unique taste against one of its competitors, ‘Magic Cheese’. Upon the court’s decision to order Magic Cheese to hand over certain documents relating to its activities, the judge requested samples of both products.
Following the tasting, the judge decided that the taste was similar enough to warrant further investigation.
The copyright claim was eventually dropped, but the judge did warn that sensory based IP claims could increase, as more businesses and corporations seek out new ways to protect their products. And, case in point, toy giant Hasbro submitted an application to trademark the distinctive scent of Play-Doh, earlier this year.
Nestlé v Cadbury
We’ve all heard the phrase ‘have a break, have a KitKat’, and immediately associate it with a four-fingered chocolate bar. So, what happens when a rival wants to mould its own chocolate in Kitkat’s image and likeness?
Nestlé came unstuck when its latest attempt to extend the protection of its chocolate in the UK failed. The Court of Justice of the European Union ruled that the shape of the confectionery in itself did not distinguish the brand.
Their failure paved the way for other chocolatiers and supermarkets (Lidl and Aldi) to make, and stock, their own 4 fingered versions.
The outcome of the latest appeal highlights, once again, how difficult it can be to trademark a shape. To be successfully trademarked, a shape must be suitably distinctive – enough for a consumer to recognise the brand on its shape alone.
It’ll be interesting to see whether Nestle ultimately make an appeal to the UK Supreme Court. Given the value of the registration, and their perseverance with this dispute so far, it could be likely that it’ll appeal. Watch this space for future updates.
There was a similar case in Germany, when the Federal Patent Court (FPC) rejected an application for a shape trademark application for sweets, based on its ‘mere technical function’. The FPC argued that sweets couldn’t have a technical function. It held that the shape of the sweets depends mainly on how easy they are to handle – in terms of storage, portioning and consumption.
The FPC decided that, even though the development of the product may involve design considerations, this doesn’t mean that the shape has a ‘mere technical function’.
Alison Conley, Partner and Head of Retail and Consumer at MHA MacIntyre Hudson tells Lawyer Monthly that retailers’ Brexit plans must prioritise supply chain mapping.
“Political uncertainty and a lack of clarity about the UK’s exit from the EU has made it difficult for retailers to plan ahead, but supply chain mapping needs to be high on the agenda.
“When the UK exits the EU, in the absence of any other agreed arrangements, World Trade Organisation (WTO) tariffs will apply to imports and exports between the UK and the EU, and between the UK and non EU countries with which the EU currently has free trade agreements. This will likely mean increased administration and costs. Retailers need to consider their contractual obligations, the added costs and potential time delays in transit.
“For VAT purposes, goods supplied to UK retailers would become imports and need import VAT to be paid at customs before they can be released. This could create a significant cash flow disadvantage for retailers importing expensive goods, as the VAT will only be recoverable on the next VAT return.
“The impact of customs duty could also be a major issue. If an agreement can’t be reached for the UK to be part of a customs union with the EU, then customs duty may be charged on the import of goods from the EU, which is not recoverable, so would be an actual additional cost for UK retailers. Likewise for UK retailers selling to the EU, the goods may attract duty in the recipient country, potentially deterring EU customers from purchasing from the UK.
“Despite the uncertainty around trade relations, tariffs and VAT, retailers have to plan now and consider all the changes that may lie ahead. Some companies are considering the creation of an EU hub to ensure that they maintain access to the free market, while others are throwing their net further afield and exploring the possibility of extending their supply chain beyond the EU to more price competitive countries. For some companies, moving sourcing back to the UK may be the most appropriate move, although this will obviously depend on the availability of the same quality of product in the UK.”
(Source: MHA MacIntyre Hudson)
