Understand Your Rights. Solve Your Legal Problems
Following a groping incident four years ago, an eight-member jury has sided with Taylor Swift in a countersuit against radio DJ David Mueller. World popstar Taylor Swift accused the now fired radio presenter of groping her during a meet and greet at the Pepsi Center in 2013.
The jury, made of six women and two men, awarded the win to Swift, and the Denver based DJ is now forced to pay out a symbolic $1 in damages to the 27-year-old singer. Swift has now vowed to donate to sexual abuse victim organizations.
Amidst the case, the jury also ruled that Taylor’s mother, Andrea Swift, is not liable for tortious interference.
While this court case was heard in the civil arena in the US, Steve Roberts, Partner at law firm Richard Nelson LLP, claims that in the UK, this dispute would have been settled in a criminal court.
He said: “It is interesting to draw comparisons with how the Taylor Swift case was dealt with in the US and how it perhaps would have been dealt with in the UK. I take the view that it would almost certainly have been dealt with in the criminal rather than the civil arena had it taken place this side of the Atlantic.
"The Sexual Offences Act 2003 at s.3 makes it clear that an offence of sexual assault is committed where:
"The touching of Miss Swift by Mr Mueller on her bottom under her skirt would undoubtedly be viewed as sexual assault by virtue of the Sexual Offences Act 2003. With present policy as it is in the light of Operation Yewtree, it is highly likely that the facts as set in this case would have resulted in a prosecution against Mr Mueller.
"An offence of sexual assault in this context would be viewed as relatively serious given that the touching was on a naked part of the body. It could conceivably even pass the custodial threshold although in all likelihood would have been dealt with by way of a community-based penalty.”
Following his arrest for DUI in May, Tiger Woods has been found to have had a whole mix of drugs in his system, with traces of marijuana, anti-anxiety medication, painkillers, and sleeping pills found.
Arrested in Florida by the authorities on May 29th 2017, according to ESPN, the star golfer's toxicology report showed Vicodin, Dilaudid, Xanax, Ambien, and THC (tetrahydrocannabinol) in his blood at the time of the arrest.
In a statement released by Woods' spokesperson , he said: "As I previously said, I received professional help to manage my medications.
"Recently, I had been trying on my own to treat my back pain and a sleep disorder, including insomnia, but I realize now it was a mistake to do this without medical assistance."
Above is the full video showing the night Woods' was arrested, via the authorities' dashcam.
The long-awaited Supreme Court decision in the case of McDonald v McDonald has newly been issued – and it has major implications for couples in the process of separating.
The case hinged on the apportionment of Mr McDonald’s pension. The dispute involved the interpretation of Regulation 4 of the Divorce etc (Pensions) (Scotland) Regulations 2000, which provides a formula to calculate the proportion of any rights or interests in any benefits under a pension arrangement classed as matrimonial property under Section 10(5) of the Family Law (Scotland) Act 1985.
Did the definition of “the period of membership” mean only the period during which Mr McDonald was an “active member” of the pension scheme (defined in Section 124(1) of the Pensions Act 1995) or the whole period of his membership of the scheme, both as an active member and a pensioner member?
If “active membership” was used, the amount assigned to the matrimonial property ‘pot’ was £10,002. However, if both active and pensioner membership was used, the figure rose to £138,534. There was therefore a huge difference between the two figures depending on how membership was interpreted.
Both Sheriff Holligan and the Inner House of the Court of Session in Scotland found in favour of Mr McDonald’s calculation, that the period of membership was restricted to “active membership”. The reasoning was primarily based on the general principles of the 1985 Act that spouses should share only the wealth accumulated by a spouse over the period of the marriage, and in particular, section 10(4) which defines matrimonial property as only assets which are acquired during the marriage and before the relevant date. It was considered the pension was only “acquired” during the period in which Mr McDonald was contributing to it and not during the period when he was a pensioner member.
The Supreme Court overturned the Inner House, and held, unanimously, that the interpretation of “period of membership” in regulation 4 of the 2000 Regulations refers to the whole period of the person’s membership, both while contributions were being made in that period and after that.
This decision may well come as no surprise to family practitioners, who have over the last few years had to interpret the 2000 Regulations in light of the Inner House decision. However, the Supreme Court decision does not necessarily result in any unfairness. It is clear from the 1985 Act that the matrimonial property should be divided between the parties fairly, which does not always mean equally.
Section 9(1) of the 1985 Act contains several principles which could be used to justify a departure from equal sharing where equal sharing would result in an unfair decision. Further flexibility is introduced by the recognition in section 10(1) that there may be other special circumstances justifying a departure from equal sharing of the matrimonial property and family lawyers are well used to using both section 10(1) and section 9(1) in persuading a court that an equal division of the matrimonial property is not the fairest way to divide the matrimonial assets.
This may well seem to be the better remedy than trying to shoehorn in an interpretation of Regulations which appear otherwise clear in their terms to achieve the same result. Separating couples might well agree, or disagree, with the fairness of the judgment – depending on which side of the argument they are on!
(Source: Balfour+Manson LLP)
With breaches costing UK firms £29 billion in 2016, Finance and Insurance are the sectors most concerned about cyber security. The rest are leaving it a little to the side. Following announcements throughout the year that company after company, and now even Talk Talk, had been hit by cyber-attacks, cyber considerations are definitely a priority to make, for any sector. Talk Talk has now also been fined £100,000 for not protecting customers' personal data.
Over the last few years, cyber security has been propelled to the forefront of the public eye. With cyber-attacks/breaches becoming more prevalent and severe than ever before, it’s a highly concerning issue. In fact, research by Beaming shockingly revealed that 2.9 million UK firms suffered cyber security breaches last year (2016), costing firms an alarming £29.1 billion.
With 83% of UK businesses online, the consequences of a cyber-attack/breach can be devastating. According to security professionals consulted by networking hardware company Cisco, operations of an organisation (36%) are most likely to be affected by any potential cyber-attack/breach. After operations finances (30%), brand reputation (26%), customer retention (26%) and intellectual property (24%) are the most affected.
No organisation with a desire to achieve favourable results and grow successfully wants to be in a position of having critical functions compromised. Yet, figures show that nine out of 10 businesses don’t even have an incident management plan in the event of a cyber-attack/breach.
SavoyStewart.co.uk sought to find out how serious business leaders are about cyber security. To achieve this, they analysed findings from Gov.uk (whom consulted over 1,500 firms) to see if cyber security was a high priority for directors/senior management in a range of sectors.
It was found that 60% of directors/senior management in finance and insurance consider cyber security a very high priority– the highest amongst the analysed sectors. Thereafter, directors/senior management in education, health or social care - consider cyber security as a very high priority at just under 50%.
With only 15% of directors/senior management in the hospitality and food sectors classifying cyber security as a very high priority, it seems they are the least concerned by prospective threats. Directors/senior management operating in the entertainment, service or membership industries are only slightly more apprehensive – with 21% regarding cyber security as a very high priority.
Matthew Yates, a Senior IT Consultant said: “Cyber security cannot be ignored. The implications of a cyber-attack or breach can be detrimental towards any company’s reputation and finances. Key decision makers therefore need to put an emphasis on cyber security by placing it at the top of their agenda. In doing so, they can effectively improve their cyber protection against potential threats. More importantly, establish a companywide precedent on embracing cyber security and its everyday importance.”
Darren Best, Managing Director of SavoyStewart.co.uk commented: “The calamity caused by recent cyber-attacks/breaches emphasises the need to take cyber security very seriously. With threats, likely to intensify as cyber criminals become more ruthless, businesses cannot rest on their laurels. Business leaders cannot afford to be just concerned or treat it as another risk management exercise. They need to effectively understand, carefully manage and thoroughly assess the security of their IT estate to continually get the basic defences right. On top of this, adequate governance and employee education on cyber security can go a long way in protecting a business’s key capabilities and functions.”
(Source: Savoy Stewart)
Judge Andrew Napolitano, Fox News senior judicial analyst, on the legal fallout over Google's firing of an employee who wrote a memo about the tech company's diversity policy.
Venezuela has more oil than anywhere on Earth, and yet it can't provide basic food and services to its citizens. Bloomberg QuickTake examines how Venezuela's poor economy and increasingly authoritarian leader have made it into Latin America's powder keg.
As part of our features aimed at law students and newly graduates, those looking for work in the legal sphere, and those simply interested in the colours of the law world, whether you’re part of a firm or looking to join a new one, litigation may not be all that familiar. Here Andrea Hall, Founder and Principle of US based The Hall Law Office, LLC, talks to Lawyer Monthly about the ins and outs of litigation form her own experience.
Litigation for me is why I became a lawyer. I remember as a child my teachers telling my mother I talked to much and that I liked to argue. Well maybe at 9 or 10 that was NOT the best trait however it has served me very well in my adult life. Not everyone likes or is cut out for this type of lawyering. What is your personality type and do you like to be in front of people or do you want to sit at a desk and argue your points on paper? You should decide that quickly in your career it makes life much easier and your client much happier. This type of work can be very demanding yet for me the kill was the best part.
The best part about litigation is figuring out the who did it and outwitting, playing and smarting the other side. The top 5 things you should know before embarking on litigation.
Know the Rules. The rules of evidence, rules of either criminal procedure or civil procedure and local court rules. You can win on issues that arise during hearings or trials before the court if you know the little ins and outs of the rules. The rules always have case law attached so you can find cases that help support your position. Study them in your down time and refresh your memory before any appearance before the court.
Know your jurisdiction and your opponent. If you are appearing in a jurisdiction or before a judge or attorney you don’t know talk to people in the area that you trust to find out what types of things they do. Is this Judge fair. Do they tend to side with one side more than the other? Does this lawyer play fairly or do they cheat? Is this lawyer someone trustworthy or do you need to have everything in writing. Again, just make sure you know who and what you are dealing with. You don’t want to be caught off guard. This will make you unsure and make your client feel like you don’t have the situation under control.
Know your case better than the other side. You not only need to know your side of the case you need to be prepared for the other side. Anticipate what the other side might argue. In criminal cases, the State is not used to cross examining witnesses because the defense usually doesn’t have a lot of witnesses to call. So, it is easy to prep your witnesses and anticipate where they might be going. In civil matters lawyers are more accustomed to having witnesses on both sides and therefore more adequately prepared for both direct and cross.
Have a good theme or theory. This will make or break your case. You want to be the best story teller in the courtroom. You want the jury to be able to fall in love or at least have compassion for your client. You want the jury to follow your story! Once you pick a theme and theory follow that throughout your case. The direct, cross-examination, witnesses, opening, closing and voir dire should all follow suit so that the information presented to the jury or judge follows that theme and theory. The presentation needs to worthy of an Academy Award.
Listen so that you can use their case against them. You know the rules, you know your opponent and you know your case. Now you get to listen to what is really being said in the court room. Listen for the golden nuggets that opposing counsel or the witnesses present and say. Use those words against them later in your opening, closing or cross- examination. If you are busy looking through your notes or transcripts when things are going in trial you may miss the “golden ticket”. Stay focused on what is being said and you just might hear the winning lottery ticket numbers.
Being a litigator takes time and practice. Don’t be too hard on yourself as practice makes perfect. Johnny Cochran didn’t come up with “if it doesn’t fit you must acquit” the first time he went to trial. It takes years of practice to perfect the practice of litigation. With hard work, dedication and determination anything is possible. Go gettem tiger!
While some are already looking towards GDPR as an opportunity, some see the regulation as a hindrance or an obstacle to overcome, and the remainder of businesses are still unaware of the pending rules. Here, Sarah Williamson, Partner at Boyes Turner and a speaker and author on data protection and security issues, discusses with Lawyer monthly the prospects of GDPR being an opportunity to seize.
The dawn of the new GDPR data regime is only ten short months away – and there is little doubt it has huge implications for the way organisations capture, handle and retain data about individuals. But aside from processes, companies also need to prepare for the impact that the regulation will have on the power balance between marketers and consumers.
In a change that could be bigger than the effect of market disruptions like the “TripAdvisor effect” on the leisure and hospitality sector, consumers will soon have much more power to drive business to or away from an organisation depending upon how they deal with their data.
In the TripAdvisor scenario, those hotels and travel companies that embraced the reviews system, which responded to the comments and that most importantly made changes, are the ones that have succeeded. The same will apply for GDPR - the organisations that embrace the principles of accountability and transparency will thrive, and those that do not will struggle.
Many businesses have already approached GDPR as an opportunity to transform the way they handle data – ushering in a healthier relationship between businesses, their customers, and the data that brings them together. This is one of the messages that comes across loud and clear from senior in-house counsel in a number of large companies in our GDPR: Getting ready for data’s new dawn paper, published on 16th July.
Even where the opportunity is seen and seized, there are many challenges and actions for the legal team. Every department in the business needs to be up to speed – if it is just, say, the super-engaged marketing team, you may have a large exposed flank somewhere else in the business. Contracts with suppliers and partners are being rewritten to take the GDPR into account. Being behind the curve or just “ticking the boxes” could see you lose out to a competitor who has grasped the potential for the new regulation to build more lasting and trusting relationships with consumers who have an inherent distrust of the way their data is stored and used.
This is the nub of the matter. The new regulation comes at a time when consumers are already distrustful and concerned about the way in which data about them is held, handled and aggregated. Consumers – as they did through the likes of TripAdvisor and Amazon reviews – are increasingly keen to seize back control of their interactions with those that they do business with. Data is set to become yet another battleground in this quest for consumer control. The ICO is also expected to launch a major PR offensive in early 2018 alerting consumers to their new rights as “data subjects”. They will undoubtedly be supported by a number of consumer rights charities launching their own public awareness campaigns. In the face of this information onslaught to your customers, you need to be ready to respond to enquiries and formal requests in a way that builds trust. And conversely to ensure that distrust doesn’t lead to a haemorrhaging of usable data from your business.
While it is understandable, given the importance of GDPR, panic is not the appropriate response. Nor is burying your head in the sand or putting GDPR in the “too difficult to handle right now” box. Instead, GDPR calls for cool heads and a calm and methodical audit approach. What data do you hold? What do you do with it? Where does it go? Who does it relate to? Do people know what to do if the data your organisation holds is at risk?
If your business is not yet ready for GDPR, there is still no need to panic. There is time to ensure everyone is asking and answer these questions. A GDPR compliance programme requires a joined up approach across all parts of the business to identify gaps in readiness, but also to build in a privacy by design and default culture. The legal department can play a major role – as it has in the likes of Aviva and Sky – in co-ordinating this approach across the business.
Doing it right will ensure you have a healthier approach to data. Instead of being disrupted by investigations, sanctions and reorganisations caused by repeated breaches of the new rules, your organisation will be able to focus on building on excellent customer relationships to achieve growth goals and business objectives. GDPR is here and it is here to stay. Forward looking, not firefighting is the way to approach GDPR – as so many of the companies we spoke to have already found to their benefit and competitive advantage.
Leading Intellectual Property Law firm, EIP, here provides Lawyer Monthly with commentary on how European car manufacturers might combat the increasing problem of copycat Chinese car makers.
The 2017 Shanghai motor show saw several Chinese car manufacturers launch new models which, some say, bore a striking resemblance to those of mainstream European brands. In 2015, a notable example was the Suzhou Eagle Carrie, which appeared a bizarre amalgam of Ferrari and Porsche. The car was branded ‘pastiche’ and its emblem had a strong resemblance to Porsche’s.
EIP has provided some insight into how the Chinese can apparently do this unchallenged and what European manufacturers can do to protect their IP.
It is important to be mindful that the burden is wholly on the owner of IP to enforce their rights against infringers. Neither governments nor police forces are going to use their position to stop IP infringers, so an IP rights holder will need to use their own means to enforce their rights, which may result in court proceedings if the alleged infringer fails to comply as deemed appropriate.
When considering automobiles, design right is the most relevant facet of IP. In China, registered designs protected under the patent system provide protection for 10 years from the date on which the application was filed. It is possible to obtain Chinese design patents for cars and automobile designs generally, but the design must be sufficiently distinctive from other designs in order to be valid.
It is key to note that IP rights are strictly jurisdictional, which means that if you hold IP rights in the UK or US for example, that does not mean that they are held worldwide. It is certainly the case that the enforcement of IP rights can be difficult in respect of copying in China, but European manufacturers could request injunctions to stop the Chinese manufacturers from exporting their cars outside of China.
Companies based in EU nation states may be able to rely on their registered and unregistered rights in the EU to prevent Chinese manufacturers selling or importing into Europe. If successful, they can also expect to receive damages if an infringement is legally proven.
Matthew Jones, partner, EIP, said: “If European car makers and the automotive supply chain fail to consider their IP strategy and operate without robust IP protection in place, they risk leaving themselves exposed to all competitors, not just the Chinese, to gain a competitive advantage. It is essential for companies to assess what IP has been created, who owns it, and what should be protected and where. A specialist IP attorney can help put these building blocks in place.
“Moreover, whilst foreign companies have historically been reluctant to apply for Chinese design patents, non-Chinese companies have in the past successfully applied for Chinese design patents for automobile designs and later successfully sued Chinese companies for infringement, obtaining millions of dollars in damages.”
The way you qualify as a solicitor in England and Wales is changing radically. Here Emma Jones, lecturer in law and member of the Open Justice team at the Open University talks Lawyer Monthly through how it could affect you.
What is the Solicitors Qualifying Examination (SQE)?
The SQE is the proposed replacement to the current most common route of qualifying as a solicitor. At present, most solicitors will have a qualifying law degree (or undertake the Common Professional Examination). They will then move on to the Legal Practice Course, followed by a two-year training contract incorporating the Professional Skills Course.
Under the new proposals by the Solicitors Regulation Authority (SRA) through their “Training for Tomorrow” programme, there will be no requirement for potential solicitors to have a qualifying law degree. However, to be admitted as a solicitor, you will still be required to hold a degree or demonstrate equivalent qualifications or experience.
There are two stages to the SQE. The first is likely to consist of a number of online tests designed to assess your legal knowledge, including the type of topics currently covered on a qualifying law degree. The second stage will focus on practical legal skills, such as writing, research, interviewing and advocacy. Potential solicitors will also be required to undertake a period of legal work-based experience of two years. However, it seems that the type of experience that counts is likely to be wider than at present, for example, it may include volunteering at a law clinic.
When and why will the SQE be introduced?
The SRA’s target date for launching the SQE is September 2020. They have indicated that they expect there to be a long transition period, so that anyone who commenced training under the current system can complete their qualification that way.
The SRA argue that a new route to qualification is needed due to a lack of consistency and transparency in the current system. They also suggest it could prove less costly. However, the proposals have been controversial, with bodies such as the Association of Law Teachers raising concerns over the SRA’s arguments, evidence and proposed forms of assessment.
What does the SQE mean to me?
If you are a current full time law student who is planning to begin their route to qualification directly after graduating, it is most likely that you will qualify under the current route. It may be that for some part time students, or graduates who decide to wait a while before training, they will have the opportunity to take the SQE. For prospective solicitors who have not yet begun their degree, they are also likely to take the SQE.
For those who may take the SQE, questions to ask will include:
The Bar Standards Board has also been reviewing the current route to qualifying as a barrister. However, they have decided against making radical changes to the current system. In particular, they intend to retain the requirement that potential entrants either have a qualifying law degree, or undertake a conversion course. Therefore, if you are unsure which branch of the legal profession you are interested in pursuing, it could be that the best option would still be to focus on obtaining a qualifying law degree.
It is likely that some universities will review their law degrees and focus on ensuring that their students are prepared for the SQE stage 1 by the time they graduate. Some may even seek to obtain work-based experience for their students to count towards the two years required (although it is not yet clear how this will work). Other universities will expect their students to undergo separate training for the SQE, perhaps alongside their degree studies, or after they graduate. This in part reflects the fact that only a minority of law graduates go on to enter the legal professions and that legal education has many other uses. You will need to carefully consider what type of law (or alternative) degree you want to obtain and how this could affect your route to qualification.
At the moment, there are lots of unanswered questions around the format and content of both stages of the SQE. However, over the next couple of years, much more detail will begin to emerge. It is important, therefore, for potential solicitors to keep up-to-date with the SRA’s proposals so that they can work out the most effective ways to ensure they can meet the new requirements.
Knowing what the SQE is and how it could affect you will be crucial for any aspiring solicitors from now on.
