Understand Your Rights. Solve Your Legal Problems
A new independent review sets out ambitious proposals for how industry and government can boost the UK’s burgeoning AI industry. The government has been urged to help the UK become the clear world leader in the development of Artificial Intelligence (AI) – to boost productivity, advance health care, improve services for customers and unlock £630 billion for the UK economy.
This week, experts from industry and academia unveiled new proposals for how government can work with industry to stay ahead of the competition and grow the UK’s use of AI right across the economy – from smarter scheduling of operations in healthcare, to hiring on-demand self-driving cars. But does the UK have the right people, with the right skills, to further these proposals?
The Industrial Strategy green paper, ‘Growing the Artificial Intelligence Industry in the UK’, published in January, identified AI as a major, high-potential opportunity for the UK to build a word-leading future sector of our economy.
Nick Shipp, intellectual property lawyer and Partner at Kilburn & Strode, had this to say for Lawyer Monthly: "While Theresa May’s Government may be known for its U-turns, I think we have to optimistically proceed as if the recently reported plans to supercharge the UK AI industry will happen.
“At first glance, the level of investment from the Government looks extremely positive. However, simply investing in R&D in the AI sector alone will not be enough to ensure success.
“Investing lower down the chain in students coming through with the right education will be needed to ensure we have the right stream of talent. Furthermore, downstream, the Government needs to do more to ensure the innovations of UK companies are protected by Intellectual Property Rights (IPRs).
“More investment in education around IPRs such as patents, as well as financial support in obtaining patent protection, could help to secure the UK as the AI hub of the future. Regardless, these government plans are, for now, undoubtedly a step in the right direction.”
US quarterback and former San Francisco 49ers player Colin Kaepernick is taking legal action against the entirety of the NFL’s team owners on grounds of collusion.
According to Mike Freeman of Bleacher Report, Kaepernick has hired an attorney and will claim NFL league team proprietors have colluded to keep him unemployed and out of the game. Such action is against the NFL’s Collective Bargaining Agreement.
Last season Kaepernick chose to kneel during the national anthem. This resulted in the San Francisco 49ers eventually getting rid of him, and other football teams refusing to employ him. Consequently, other players, this including seven San Fran 49ers players last weekend, have took to kneeling during the anthem. This has in turn infuriated US president Donald Trump who is against the rebellious movement.
According to the Guardian, Kaepernick’s attorney Mark Geragos has stated: If the NFL (as well as all professional sports teams) is to remain a meritocracy, then principled and peaceful protest – which the owners themselves made great theater imitating weeks ago – should not be punished and athletes should not be denied employment based on partisan political provocation by the Executive Branch of our government.
“Such a precedent threatens all patriotic Americans and harkens back to our darkest days as a nation. Protecting all athletes from such collusive conduct is what compelled Mr Kaepernick to file his grievance. Colin Kaepernick’s goal has always been, and remains, to simply be treated fairly by the league he performed at the highest level for and to return to the football playing field.”
This is now a highly debated discussion around the US sports sector, and in the legal world. Do you think collusion action is the way forward?
Following last month’s landmark Supreme Court decision in the case of MTH v E.ON, which concerned the interpretation of contractual terms in a design and build contract, below Emily Albou, a leading Property Damage and Commercial Dispute Resolution barrister at 2 Temple Gardens, talks Lawyer Monthly through the case, investigating the impact of this decision on the pre-contractual precautions that contractors should take to avoid such issues.
MT Højgaard A/S v E.On Climate & Renewables UK Robin Rigg East Ltd & Anor [2017] UKSC 59
Introduction
A recent Supreme Court case has reignited the debate around issues of contractual interpretation.
The foundation structures of two offshore wind farms, which were designed and installed by MT Højgaard A/S (“MTH”), failed shortly after completion of the project. The court had to determine whether MTH was liable for this failure.
Background to the case
In December 2006 MTH agreed to design, fabricate and install foundations for proposed turbines, which then started to fail in April 2010. Remedial works commenced in 2014 and the question arose as to who should bear their cost. It was agreed that the remedial works cost €26.25 million.
MTH contended that it had no liability for the cost of the remedial works owing to exercising reasonable skill, care and compliance with all contractual obligations. E.ON contended that MTH had been negligent and was responsible for numerous breaches of contract to the effect that they were liable for the failure.
At first instance, Edwards-Stuart J found for E.ON primarily on the grounds of a breach of contract by MTH – namely that (i) clause 8.1(x) of the contract required the foundations to be fit for purpose, (ii) fitness for purpose was to be determined by reference to the Technical Requirements (which formed part of MTH’s tender documents), and (iii) para 3.2.2.2(ii) (and also para 3b.5.1) of the Technical Requirements required the foundations to be designed so that they would have a lifetime of 20 years. He also held that this conclusion was also supported by clauses 8.1(viii) and (xv) of the contract.
MTH successfully applied to the Court of Appeal, which held that there was an inconsistency between the paragraphs that Edwards-Stuart J had relied upon and all the other contractual provisions. Jackson LJ, with whom Patten and Underhill LJJ agreed, stated that the other contractual provisions should prevail. Jackson LJ went on to describe paragraphs 3.2.2.2(ii) and 3b.5.1 of the Technical Requirements as “too slender a thread upon which to hang a finding that MTH gave a warranty of 20 years life for the foundations”.
General principles
The Supreme Court gave useful guidance on the interpretation of contractual clauses, reasserting Wood v Capita Insurance Services Ltd [2017] 2 WLR 1095, stating that:
“The reconciliation of the terms, and the determination of their combined effect must, of course, be decided by reference to ordinary principles of contractual interpretation (as recently discussed in Wood v Capita Insurance Services Ltd [2017] 2 WLR 1095, paras 8 to 15 and the cases cited there), and therefore by reference to the provisions of the particular contract and its commercial context.”
Lord Neuberger, giving the lead judgment, further stated that:
Where a contract contains terms requiring an item (i) which is to be produced in accordance with a prescribed design, and (ii) which, when provided, will comply with prescribed criteria, and literal conformity with the prescribed design will result in the product failing one or more of the prescribed criteria, it does not follow that the two terms are mutually inconsistent.
In many contracts, the proper analysis may be that the contractor must improve any aspects of the prescribed design that would otherwise lead to the product falling short of the prescribed criteria, and in other contracts, the correct view could be that the requirements of the prescribed criteria only apply to aspects of the design that are not prescribed.
While each case turns on its own facts, decisions of the United Kingdom and Canada suggest the courts are inclined to give full effect to the requirement that the item as produced complies with the prescribed criteria on the basis that although the customer or employer has specified or approved the design, the contractor is expected to take the risk if they agreed to work to a design that would render the item incapable of meeting the agreed criteria.
Outcome
In applying those principles to the contract, the Supreme Court allowed E.ON’s appeal and restored the order made at first instance– thereby holding MTH liable for the failure.
Conclusion
The wording of the contract meant this case progressed to the Supreme Court: the matter rested on conflicting contractual terms that were left open to different interpretations and ultimately cost MTH €26.25 million.
The judgment provides useful guidance regarding contractual interpretation and also warns contractors that contracts demand extreme scrutiny at the base stage. It is of the utmost importance that contractors:
Employ expert legal advice when drafting contracts, to ensure these are not left open to conflicting interpretation later down the line; and
Ensure that the agreed design will meet the prescribed criteria, as the risk lies with the contractor in circumstances where they have agreed to work to a design that inevitably fails the prescribed criteria.
The Ministry of Justice says it will support the Assaults on Emergency Workers (Offences) Bill, meaning offenders who attack emergency service workers such as ambulance and NHS staff, firefighters, police officers etc. will receive a twice-fold maximum prison sentence.
The new rules, proposed by Former Labour minister Chris Bryant, also require judges to consider the assault on 999 workers on an equal sitting with hate crimes.
According to the Daily Mail, a government spokesman stated: “We owe our brave emergency service workers a debt of gratitude for the courage, commitment and dedication they demonstrate in carrying out their duties.
“This crucial change will send a clear message that we will not tolerate attacks on them, and we will work to ensure those who are violent face the full force of the law.”
These new laws come on the back of increased attacks on emergency services staff, and according to national statistics, assaults on NHS staff rose from just shy of 60,000 in 2011/12 to over 70,000 in 2015/16.
The law is likely to be enforced as of next year. Chris Bryant says: “I hope this new law will put an end to the worrying rise in assaults on workers in the emergency workers…It will send out a signal that an assault on them is an assault on all of us.
“There has been an enormous rise in the number of incidents and all too often magistrates seem to think it is just part of people's jobs to accept the might get punched if they work in the emergency services. That is not acceptable, and we need to change it.
“This new law will make it clear that the public want a zero tolerance approach and I am glad that, after weeks of wrangling, the Government has decided to support it rather than watering it down.”
The General Data Protection Regulation (GDPR) will come into effect on the 25th May 2018 and will change the European privacy landscape. At Deloitte, we see GDPR not only as a challenge, but also as an opportunity.
How can you manage all the data you hold efficiently and legally? What exact information do your clients, employees, citizens or patients share? And how can you turn it into a competitive advantage?
Anyone who has played Epic Games' incredibly popular Fortnite Battle Royale knows that cheaters have quickly become a major problem. Epic has taken a number of steps to counteract cheating, including new lawsuits against two repeat cheaters.
A new study examining the security practices of law firms has found that only one organisation out of the top 100 UK firms, Walker Morris, has sufficient measures in place to fully protect against email fraud. With the threat of phishing attacks increasing by 65% in 2016, this revelation serves as a stark warning to law firms in the possession of the strictest of confidential consumer information.
The research, undertaken by cloud data intelligence company OnDMARC, comes in the wake of recent reports that UK law firms saw an unprecedented 45 cases of cyber theft in the first quarter of 2017. With law firms under a duty to replace any lost client monies, OnDMARC warns that the financial burden of future email fraud attacks could be crippling.
“With over 10,000 law firms operating in the UK, handling sensitive and hugely confidential commercial and private data, there is a real opportunity for scammers to target the legal sector,” said Dr. Rois Ni Thuama, head of cybersecurity governance partnerships and legal, OnDMARC. “Many law firms either don’t understand the risk or assume that their existing email systems will do the job of protecting them, even though our study very quickly demonstrated that it’s all too easy for a criminal to exploit these firms’ email domains in order to impersonate the company and send out fraudulent messages to external clients and stakeholders.”
The research shows firms questioned by OnDMARC incorrectly assumed that their existing IT security solutions would cover their organisation against sender fraud. According to OnDMARC, this is because these solutions don’t provide compliance with DMARC (domain-based message authentication, reporting and conformance), a recently ratified email protocol that has been approved and endorsed by the National Cyber Security Centre, part of GCHQ, as the only sure-fire way of stamping out email spoofing.
The Solicitors Regulation Authority’s annual Risk Outlook report provides the sector with the latest advice on tackling information security breaches. Technology solutions such as DMARC should be included to enable law firms to fully protect client data and monies.
“We’re usually quick to blame human users as the most insecure element of the cyber security chain, but in the case of email spoofing, it’s the basic email systems that are being duped, which is a big reason why legal firms have experienced losses, mainly via phishing, of over £3 million in just three months,” continued Ni Thuama. “Implementing DMARC will enable the 99% of firms currently susceptible to email impersonation to combat this type of email fraud and thus help to prevent them from suffering reputational or financial damage with their client base further down the line. Legal firms such as Walker Morris should be applauded for implementing the necessary measures to thwart the risks of data theft.”
Besides public sector bodies such as HMRC or the NHS, the threat of data theft from law firms would represent the greatest break of client trust. May 2018’s GDPR is set to transform data protection, and organisations of any sector should be encouraged to correctly configure their domains to prevent email impersonation, thus minimising security breaches.
(Source: OnDMARC)
With the introduction of new EU trademark regulations which came into force on 1st October, Rose Smalley, Amy Galloway and Patrick Cantrill at law firm Bond Dickinson, discuss everything you need to know on the new rules, including all the challenges and opportunities they present for your business.
Despite claims that further European trade mark reforms, which apply from 1st October, now present greater opportunities to businesses seeking to register 'non-traditional' trade marks at the European Intellectual Property Office; there is some doubt as to whether the registration process will be as straightforward as for other traditional marks and whether enforcement will be practical in view of the seemingly narrow scope of protection granted.
The registration of non-traditional categories of marks such as sound, multimedia, motion, hologram and position marks has now been expressly facilitated by the decision to abolish the requirement for "graphical representation" and instead to replace it with a requirement that the mark's representation must simply be "clear, precise, self-contained, easily accessible, intelligible, durable and objective".
However, lessons learned from the attempted registration of arguably more traditional marks (those which have been included in legislation for a longer period); including shapes and colours, suggest that registration may not be quite as easy as anticipated. Experience shows that applicants for shapes, colours etc. have faced difficulties in demonstrating that these signs are capable of fulfilling the essential function of a trade mark, i.e. being a badge of origin, or that they have the necessary distinctiveness.
For example, the recent failed attempt by Nestlé to register a four-finger bar for certain confectionary goods, known commonly as the KIT KAT case, as a shape trade mark demonstrates the issues with which applicants contend when trying to demonstrate that these non-traditional marks deserve registration. Such applications face a high evidential burden to demonstrate their acquired distinctiveness.
Whilst some have succeeded in their shape mark applications, such as Kraft Foods for its Toblerone packaging shape and Lego A/S for the shape of its figurines, other applicants continue to struggle in registering non-traditional marks such as Red Bull for its blue-silver colour combination mark, which was rejected due to a lack of sufficient precision.
Even if marks proceed to registration, there seem to exist significant limitations in terms of enforcing these registrations. Whilst the usual advice is that registration is king, some trademarks are granted with such a narrowly drawn specification or scope that enforcement against "identical" or "similar" marks presents a whole raft of difficulties in determining what these terms mean. Established tests as to what constitutes infringement rely on aural, visual and conceptual similarity – criteria which cannot be applied to a number of these non-traditional marks.
Whilst new opportunities are presented by these reforms, businesses must carefully consider the value of these non-traditional marks in enforcement strategies.
Nailing your first paralegal position was difficult enough, now you’re having a real hard time moving upward. So how do you make Partner? Catherine Thomas, Partner and Co-Head of the London team at JMW Solicitors, talks Lawyer Monthly through the plan.
Elbowing your way into a law partnership requires a plan. Very few will stumble into partnership without thinking about it, but instead will actively chase it down, often over the course of several years. The earlier you start to plan, the better. Each legal partnership has its own particular personality, which will require careful studying if you want to join its ranks, but much of the key preparation for that promotion is common to all firms.
Start behaving as if you are already a partner. The advice I give to even the most junior fee earners in my law firm is always behave as if you are one promotion ahead of your current role. Projecting a more senior image will allow management to imagine you in that next role. If you are not perceived to be partnership material, you won’t get very far. This doesn’t mean starting to boss around your peers (this is unlikely to help with your popularity!) but rather conduct yourself as you believe a partner should. Undertake a critical appraisal of yourself. Think about how you communicate with your colleagues, with clients and everyone else with whom you interact in a professional context. Consider whether you should be putting more effort into training and developing the more junior members of the team; invest in the people around you in the way senior people should. Never underestimate the impact of your clothes on other’s perception of you. If you don’t look the part, you are unlikely to get it. Ditch the saggy cardigans or frayed ties and invest in a wardrobe upgrade. When in work always, without exception, dress like a partner.
A common distinction between partners and more junior fee earners is the extent to which they consider the wider needs and ambitions of the business. Non-partners will often focus their energies on their client work and billable targets without volunteering much, if any, of their time to the development of the business. A good partner will consider and juggle both. Managing clients and a business can often feel as though you have two jobs, with prioritisation of work becoming even more complicated. Show the law firm you are up to the challenge.
Prove your commitment to the partnership by showing you understand what it is trying to achieve and spend time thinking about how you can contribute to that joint effort. If the firm’s ambitions aren’t clear to you, speak to a partner and ask them to enlighten you. There may be detail they can’t share with you, but they should be able to give you the headlines. Make suggestions as to what you could do to help. If they don’t take to your ideas, explain how keen you are and ask them what you can do to help. Get this message out to as many of the decision-makers as you can.
If you are going to make partner, you will need internal support both from your own legal team and the wider firm. Unless you are in a small firm, you will need to become more visible. Extract yourself from your desk. Get to know more of your colleagues, be that through work events or just chatting to someone new at the coffee machine. Email less, step away from your computer and seek people out (this is good advice in life generally); speak to actual human beings face-to-face.
Create your own business plan setting out what you will achieve for the business and how. The process of putting this together is not only good discipline in itself, as it will allow you critically to assess the quality of your ideas, but it is the best way of ensuring you remain focussed over time and achieve your goals. It will also form an important record of what you have been doing. Many partnerships will expect you to submit a business plan as part of your partnership application. You will end up with a higher quality submission if you have been thinking along these lines already and have a record of your own achievements on which to draw.
Having said all of the above, before investing your time executing your plan, consider whether you are currently at the right firm for your ambitions. If it is going to take the retirement or untimely demise of an existing partner before there is even the chance of a promotion, consider a move now. If your law firm is stagnant, get yourself into a dynamic, growing firm where the opportunities for progression will be more plentiful.
Below, Claire Brook, an Employment Law Partner at Aaron & Partners LLP, talks to Lawyer Monthly about the recent case of Bogdan Mihai Barbulescu, and delves into the legal bindings of monitoring private messages in the workplace.
In 2016, the Chamber of the European Court of Human Rights (ECtHR) ruled that a Romanian employer did not act unlawfully or in breach of Article 8 of the European Convention on Human Rights (ECHR) when it monitored an employee’s Yahoo messenger, and ultimately dismissed him for sending private messages during work hours.
The claimant appealed this decision to the Grand Chamber of the ECtHR, which has now found in favour of the individual based on the right to respect for privacy, and reversed the judgement.
Bogdan Mihai Barbulescu was employed as an engineer by a heating company. In July 2007, Mr Barbulescu’s Yahoo messenger account was monitored by his employer, who found private messages that had been sent from Mr Barbulescu to his wife and brother, containing personal information including sensitive personal messages containing private content. Mr Barbulescu was subsequently dismissed for breaching the employer’s IT policy, by sending private messages during working hours.
Mr Barbulescu brought an unsuccessful claim challenging his dismissal, with the court ruling that the employer was entitled to monitor his messages. Following this decision Mr Barbulescu brought an unsuccessful claim in the ECtHR against the Romanian government, stating that they had failed to protect his Article 8 rights.
Mr Barbulescu appealed to the ECtHR Grand Chamber, which reversed the decision, finding that Mr Barbulescu’s Article 8 rights had been infringed and that previous courts had failed to strike a fair balance between the employer’s and the employee’s interests.
It ruled that workers have a right to respect for privacy in the workplace, and employees should be told that communications may be monitored.
In light of this judgement, employers should consider:
