North West WIN Annual
18 April 2013
North West WIN Annual
Welcome – Andrew Roberts
18 April 2013
Rachel Power
TUPE – Current issues (1)
 Erosion of service provision change mechanism
 Enterprise Management Services Ltd v Connect-Up Ltd and others
[2012] IRLR 190 (EAT)
 Johnson v Campbell and another UKEAT/0041/12
 Argyll Coastal Services Ltd v Stirling and others UKEATS/0012/11
 Hunter v McCarrick UKEAT/0617/11
WIN Annual Update
18 April 2013
TUPE – Current issues (2)
 Which employees transfer?
 Eddie Stobart Limited v Moreman and others
 Argyll
 Seawell Limited v Ceva Freight (UK) Limited
WIN Annual Update
18 April 2013
TUPE - Consultation on proposed changes
 Consultation 17 January – 11 April 2013
 Proposals include:
 repeal of "service provision change" provisions
 removal of obligation to provide employee liability information
 amending the meaning of "entailing changes in the workforce"
(part of the ETO defence) to cover changes in location of the
 dual consultation
 Legislation expected October 2013 onwards
 Contractual protection key to address uncertainty
WIN Annual Update
18 April 2013
Employment Tribunal Reform - Fees
 Implementation in Summer 2013?
 Employment Tribunal fees
 Issue and hearing fees
 Level 1 – low value claims for sums due on termination (e.g.
unpaid wages and PILONs)
 Level 2 – all other claims (including unfair dismissal,
discrimination, equal pay and whistleblowing)
 Application specific fees
 EAT fees
 Remission scheme
WIN Annual Update
18 April 2013
Employment Tribunal Reform – Procedures
 Changes to the Tribunal procedure rules
 Implementation in Summer 2013?
 Key changes
 Rejection of claim and response
 "Sift" stage
 Costs – awards above £20,000 no longer need to be referred to
the court for assessment
 Presenting a response – 5pm deadlines
 Preliminary hearings – to consider both case management and
preliminary issues
WIN Annual Update
18 April 2013
Employment Tribunal Reform – Enterprise
and Regulatory Reform Bill
 Implementation from Summer 2013 onwards
 Key changes in the context of Employment Tribunal reform
 Compulsory pre-claim ACAS conciliation
 Protected settlement conversations for ordinary unfair dismissal
 Settlement Agreements – statutory code of practice and guidance
 Change to compensation award cap in unfair dismissal claims
 capped at the lower of 1 year's pay and existing limit
 Abolish discrimination questionnaires
WIN Annual Update
18 April 2013
Changes to collective redundancy consultation
 Changes to collective redundancy consultation obligations:
 Implemented 6 April 2013
 90 day minimum consultation period before the first redundancy
can take effect is reduced to 45 days where 100 or more
employees are affected
 Employees on fixed term contracts which have reached their
termination point will be excluded from collective redundancy
consultation obligations
 New ACAS non statutory code of practice
WIN Annual Update
18 April 2013
Christopher Roberts
Summary Profile
Christopher joined DLA Piper in 2002 as a trainee solicitor, qualifying into the firm's restructuring team in
Christopher specialises in non-contentious aspects of corporate recovery, restructuring, turnaround and
insolvency including advising upon administrations, receiverships and liquidations.
Other aspects dealt with include advising directors upon their duties and responsibilities in relation to
companies facing financial difficulties and acting for purchasers of businesses from insolvent companies.
All aspects of non-contentious insolvency and restructuring including business and asset sales, real estate
transactions, landlord and tenant issues, advice on security issues, advising main clearing banks, invoice
discounters and factors and insolvency practitioners.
Major Transactions
Administrations of: MusicZone, Wine Cellar, Passion for Perfume, Weatherseal Windows, Total Fitness and
Stanleybet UK Investments/Stanleybet Overseas Investments.
WIN Annual Update
18 April 2013
Aim and Focus
 Aim of update
 To highlight certain circumstances where corporate restructuring
and/or insolvency procedures may be used to benefit your
company's business.
 To reduce concerns surrounding corporate restructuring and
 Focus of update
 Acquisition of a company's shares followed by a CVA
 Sale of a company's business and assets through an
Administration process
 Avoiding TUPE liabilities
 ROT claims and identifying goods
 Risk of over-reliance on a single supplier in the current economic
WIN Annual Update
18 April 2013
Acquisition of shares followed by a
 CVA (Creditors voluntary arrangement) - process whereby a
company proposes an arrangement to its creditors to reorganise
its liabilities
 Enables a buyer to purchase a company and drop the loss
making parts whilst leaving the good parts untouched and intact
 Successful, well publicised CVA's include: JJB Sports, Focus
DIY, Blacks Leisure, Barratts Shoes and Flannels
WIN Annual Update
18 April 2013
Acquisition of shares followed by a
CVA cont…
 DLA Piper was the first firm to bring this product to the market
 Our first client to successfully utilise the product acquired the
shares in a group of companies holding over 500 retail units
and in doing so acquired the benefit of very significant tax
losses which were available to be set off against the future
profits of the post CVA profitable business
 Advantages:
 Preservation of tax losses
 Less business disruption
 Reduces overall liabilities
 Avoids the stigma of insolvency?
WIN Annual Update
18 April 2013
Sale of a company’s business and
assets out of Administration
 If a CVA is not workable, an asset sale may be a potential
 However, risk of an asset sale being challenged as a TUV in a
subsequent insolvency and vendor unable to fulfil its
obligations under the SPA
 An asset sale out of an insolvency procedure, e.g.
Administration, may be more desirable for vendors and
 Preserve goodwill and no break in trading where the sale is prepackaged
 Cherry pick assets without the company's liabilities (except for TUPE
liabilities) – though be wary of commercial reality: lack of supply credit
going forward and may need to pay sweetner to suppliers
 Limit the risk of the sale being challenged and subsequently unravelled
as TUV
WIN Annual Update
18 April 2013
Avoiding TUPE liability on a business
 The Transfer of Undertakings (Protection of Employment)
Regulations 2006 ("TUPE") apply when purchasing a solvent
business or a business from an administrator
 All employees automatically transfer plus purchaser may also
be liable for potential protective awards
 However, employees do not automatically transfer in a sale by
a liquidator
WIN Annual Update
18 April 2013
Retention of title "club"
 When supplying goods to customers, supply contracts normally
contain ROT clauses
 If a supplier is unable to identify its goods from an insolvent
customer’s stock, then the supplier’s ROT clause will not normally be
 Admixture of goods
 BUT the supplier may be able to defeat an admixture defence if it can
prove that it supplied generic stock/raw material to the customer
WIN Annual Update
18 April 2013
Risk of over-reliance on a supplier
 As a result of the current economic climate, suppliers have been
forced to reduce prices in order to combat competition
 Increasing shift to low stock, just in time models of supply
 Many suppliers now rely on volume ordering and customers have
reduced their amount of suppliers to increase efficiency
 Insolvency of one link in the supply chain can create a domino effect
of insolvencies up and down the chain
 eg the administration of Woolworths led to the insolvency of Zavvi
WIN Annual Update
18 April 2013
Risk of over-reliance on a supplier
 Insolvency practitioners may seek ransom payments from
customers of an insolvent supplier
 eg the Land Rover and UPF case:
 KPMG threatened to stop supply unless Land Rover paid it £46
 Land Rover ultimately paid £15m to £20m for UPF’s debt to
replace UPF’s receivers to ensure UPF continued to supply
essential parts to Land Rover
WIN Annual Update
18 April 2013
Early warning signs of a supplier’s
Warning Signs
 Missed deliveries
 Requests for deposits and up-front payments
 Unexpected rise in prices or attempts to renegotiate pricing or
 Reduction in credit insurance cover
 County court judgments and winding-up petitions – DLA Piper
can conduct these searches for you
Questions to ask the supplier
 Have you moved from quarterly to monthly rents?
 Have you agreed a time to pay agreement with HMRC?
WIN Annual Update
18 April 2013
Protect yourself
 Methods of dealing with a supplier's insolvency:
 Protect yourself by building up stock levels and consider
having more than one supplier for key supplies
 If a supplier becomes insolvent, customers may have to
consider acquiring the supplier's business to avoid costly
renegotiation of supply terms or having to make ransom
payments to the insolvency practitioner
WIN Annual Update
18 April 2013
Key Messages
Key Messages
 There are ways to purchase distressed businesses and
assets in a financially efficient way
 A vendor can make the sale of a subsidiary business more
attractive to the market
 If you are a supplier of generic stock or raw material, you
may still be able to recover your goods from an insolvent
supplier even if you are unable to identify your specific
 Be vigilant of supplier distress and protect yourself from
ransom demands and other business disruption
WIN Annual Update
18 April 2013
North West WIN Annual Update
Ian Wood and Jim Pinsent
Overview – one major new case!
The Walter Lilly Case
Walter Lilly & Company Ltd v Giles Patrick Mackay and others
WIN Annual Update
18 April 2013
 Defining case in last 12 months in both construction and
 Extension of time and concurrent delay
 Global claims
 Privilege
 Settlement
WIN Annual Update
18 April 2013
 Mr Mackay's quest to build the perfect house
 Ended with legal costs liability in excess of £9 million
 Litigation
"Very old fashioned because it has involved full blooded
conflict between the parties in which there seems to have
been little, no or belated room for compromise"
 Worth a read for Mr Mackay's comments
WIN Annual Update
18 April 2013
Simple facts
 Traditional contract with Walter Lilly as main contractor
 Fixed completion date with extension of time mechanism for
employer risk events
 Liquidated damages for culpable delay
 Time and cost overrun – liquidated damages applied
WIN Annual Update
18 April 2013
Concurrent delay
 Long standing question of who gets benefit of concurrent delay
 Is contractor entitled to extension of time?
 Traditional in England: yes Henry Boot v Malmaison
 Scotland: City Inn v Shepherd no. Necessary to apportion
relevant delay period between factors causing delay
 Walter Lilly resolves confusion
WIN Annual Update
18 April 2013
Global claims
 What are Global Claims?
 Traditionally scorned by employers and courts
 Aikenhead J:
"there is nothing in principle 'wrong' with a 'total' or 'global'
 Claims will no longer fail on basis of single issue not pleaded
or proved or which is proved to be the fault of contractor
WIN Annual Update
18 April 2013
 Claims consultant appointed to provide "contractual and
adjudication advice"
 Application of:
 legal advice privilege
 litigation privilege
 Neither privilege applies to correspondence and legal advice
from claims consultants or non practising solicitors or
WIN Annual Update
18 April 2013
Settlement agreement and
third parties
 Settlement between Party A and Party B
 What can Party B recover from culpable third party?
 Siemens v Supershield upheld
 Question of reasonableness determined by strength of claim,
whether legal advice obtained, consequences of litigation and
benefits of settling
 Practical issues
WIN Annual Update
18 April 2013
North West WIN Annual Update
Stephen Jones
Patent Box 1
 Reduced rate of 10% for companies within the charge to UK
corporation tax who exploit patents and/or certain other
botanical and medical innovations
 Companies must opt into the regime for it to apply and the
relief is to be phased in between 1 April 2013 and 1 April 2017
 The reduced rate of corporation tax is applied to a proportion
of the company's profits derived from:
 sales of products incorporating the patented technology
 licensing and selling patent rights themselves
 other use of such right sin the course of a trade (e.g. in providing
 compensation for infringement of patent rights
21 March 2013
Patent Box 2
 The company must have an "exclusive" licence over the
qualifying IP in one or more countries or territories.
 The company must have been involved significantly in the
creation or development of the qualifying IP, or of a product or
process that incorporates it.
 There are special rules for groups aimed at preventing relief
where the IP was developed outside the group (e.g. where a
company that developed the IP is subsequently acquired by
another company), unless certain further activity is carried out
within the group or an additional "active ownership" condition
is satisfied.
 Patent box profits are calculated according to a standard
formula (see next slide) or a "streaming method"
21 March 2013
Patent Box 3
Stage One
(Identify Profit)
(1) Calculate Gross
Trading Income
Stage Two
(4) Deduct Routine
Return to give
Qualifying Residual
Profit ("QRP")
Stage Three
(Deduct Brand
(5) Opt for Small
claims Treatment
(if appropriate)
(2) Calculate
relevant IP Income
("RIPI") as a
proportion of TI
(3) Calculate
percentage of
trade profits (or
losses) attributable
(6) deduct
Marketing Asset
return from QRP
21 March 2013
Patent Box 4
Patent Box – Practice Points for In-House Lawyers
 The ownership of patent rights and other qualifying IP will
affect the availability of relief:
 whether a company opts into the patent box may depend upon
whether it is making profits or losses;
 this and other factors may influence a decision whether or not to
move IP around the group;
 the effect of litigation settlements and licensing arrangements will
be relevant for determining whether the company has an
"exclusive" right enabling it to claim relief;
 it may be beneficial to bring qualifying IP into the UK and to
relocate development here.
21 March 2013
Statutory Residence Test 1
 Statutory Residence Test ("SRT") is contained in schedule 43
of the Finance Bill and replaces the previous mix of case law
and HMRC practice (HMRC's approach was set out in
HMRC6) for tax years 2013-14 onwards;
 if automatic non-residence test is satisfied, the individual is not
 if the automatic residence test is satisfied, the individual is
 where neither of these applies the individual is resident if he or she
has "sufficient ties" with the UK, which test depends on
"connecting factors" and days spent in the UK – the more
"connecting factors" the fewer days are required to make a person
21 March 2013
Statutory Residence Test 2
Automatic Non-Residence – always takes precedence
Days in UK
UK resident in one or more of 3
previous tax years
< 16 (and did not die here!)
UK resident for none of previous 3
tax years
< 46
Sufficient overseas work with no
significant breaks (complex
< 31 days in UK where more than
three hours' work done and < 91
days spent in UK
Two other automatic tests apply in the event of death
21 March 2013
Statutory Residence Test 3
Automatic Residence – next test to apply
Days in UK
Present in UK for 183 days in tax
No additional "days" test
"Home" in the UK
Spends sufficient days in that home
and satisfies requirements in
relation to overseas home (if any) –
complex rules
Sufficient UK hours of work with no Complex rules here too!
significant breaks
A fourth automatic test applies in the event of death
21 March 2013
Statutory Residence Test 4
"Sufficient Ties" where resident in one or more of previous three
tax years
Days spent in the UK
Minimum number of ties
Greater than 15 but not more than
More than 45 but not more than 90
More than 90 but not more than
More than 120
21 March 2013
Statutory Residence Test 5
"Sufficient Ties" where not resident any of previous three tax
Days spent in the UK
Minimum number of ties
More than 45 but not more than 90
More than 90 but not more than
More than 120
21 March 2013
Statutory Residence Test 5
The "UK ties"
"Family"- "relevant relationship" with another person resident in the UK
"Accommodation" – a "place to live" in the UK for at least 91 days and
spends at least one night there
"Work" – at least 40 days working for at least three hours on each such
day in the UK
"90-day tie" – spends more than 90 days in the UK in the preceding tax
year, the tax year preceding that year or both
"country" tie (only applies if resident for one or more of previous three
tea years) – meets the "midnight test" for the greatest number of days in
the UK (compared to each other country)
21 March 2013
Statutory Residence Test 6
The rules are complex and the slides above are an oversimplification!
SRT – Practical Points for In-House Lawyers
 Patterns of work for multi-state employees may change
 Old contracts and methods of working may need to be
 There will be a constant need to take tax advice on the impact
of detailed personal and employment circumstances
 Double taxation relief rules still apply
21 March 2013
General Anti-Abuse Rule
 The General Anti-Abuse Rule (GAAR) will apply to income tax,
corporation tax, capital gains tax, inheritance tax, petroleum
revenue tax and stamp duty land tax (it is later to be extended
to NIC)
 The GAAR will provide for the counteraction of tax advantages
arising from tax arrangements that are "abusive"
 Counteraction must first be notified by a designated HMRC
officer and, unless having considered representations made by
the taxpayer a designated HMRC officer decides that
counteraction ought not to apply, the arrangements must be
referred to an "Advisory Panel" to be established by the
Commissioners for HMRC for the purpose, for its opinion.
21 March 2013
General Anti-Abuse Rule
"Tax arrangements are “abusive” if they are arrangements the
entering into or carrying out of which cannot reasonably be
regarded as a reasonable course of action in relation to the
relevant tax provisions, having regard to all the circumstances
(a) whether the substantive results of the arrangements are
consistent with any principles on which those provisions are
based (whether express or implied) and the policy objectives of
those provisions,
(b) whether the means of achieving those results involves one or
more contrived or abnormal steps, and
(c) whether the arrangements are intended to exploit any
shortcomings in those provisions"
21 March 2013
General Anti-Abuse Rule
Statute will set out examples of arrangements that are to be
considered "abusive"
 they result in an amount of income, profits or gains for tax
purposes that is significantly less than the amount for economic
 they result in deductions or losses of an amount for tax purposes
that is significantly greater than the amount for economic
 they result in a claim for the repayment or crediting of tax
(including foreign tax) that has not been, and is unlikely to be,
Practical Point for In House Lawyers – difficult dividing line between
"abusive" and non-abusive structures – scrutiny required
21 March 2013
Miscellaneous Points to Remember
 Entrepreneur's relief for shares acquired under an enterprise
management incentive scheme – always consider EMI if you
 VAT and acquisition costs – following BAA –v- HMRC [2013]
EWCA Civ 112 – taxpayer lost its claim to recover input tax
on incurred on professional fees invoiced to a company
which acquired it and subsequently became a member of its
VAT group; the case underscores the need for a holding
company to have an "economic activity", to make ,or to
intend to make, supplies in the course of a business.
 VAT – Robinson Family Limited –v- HMRC [2012] UKFTT
360(TC) – grant of a long lease subject to sub-leases can be
a TOGC if value of reversion is minimal.
21 March 2013
North West WIN Annual Update
Dominic McKean
 Apple v Samsung - who is winning the war?
 The new European Unified Patent system - what will it mean
for you?
 The Internet's New Wild West - an update on who's applying
for new gTLDs and why
 Is using your Community trade mark in just one Member State
enough to keep it safe from attack?
Essential Legal Update
18 April 2013
Apple v Samsung
 In the UK, Apple sued for
infringement of its RCD.
 Apple alleged that the
Samsung Galaxy tablets had
copied its design.
 The court found that there
were certain similarities:
1. the front;
2. the fact neither had
indicator lights or buttons;
3. the thinness enhancing
effect of the sides.
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Apple v Samsung
 However, there were two major differences which meant that
the Samsung tablets did not infringe Apple's registered design:
1. The most important difference between the Samsung tablets
and the Apple design was the thinness of the Galaxy tablets;
2. The next most significant difference was the detailing on the
back of each of the tablets.
"They do not have the same understated
and extreme simplicity which is possessed
by the Apple design, they are not as cool,
and so the overall impression produced is
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Apple v Samsung
 In the US it was a different story. Apple sued Samsung for
infringement of three patents:
1. US Patent No. 7,469,381 relating to "list scrolling and
document translation, scaling and rotation on a touch-screen
2. US Patent No. 7,844,915 relating to an "application for
programming interfaces for scrolling operations" (zooming,
bounce-back on scrolling, etc); and
3. US Patent No. 7,864,163 relating to a "method for displaying
at least a portion of a structured electronic document",
 as well as four design patents, including the '889 design patent
which claimed the "the ornamental design for an electronic
device" with depictions of the rounded cornered tablet.
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Apple v Samsung
 Samsung counterclaimed for
infringement of six of its own patents.
 After a three week trial, a Californian
jury gave its verdict:
1. Samsung had infringed all Apple's
patents and design patents, except
the famous '889 design patent; and
2. Apple had not infringed any of
Samsung's patents.
 And the jury awarded Apple damages
The '889 design patent
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Apple v Samsung
$1.05 billion
The fourth largest jury award in a patent case ever…
though the Judge has ordered for a new jury trial to re-examine
$450 million of the damages Apple was awarded.
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European unified patent system
 On February 19, 24 members of the 27 European Union
signed a unified patent court agreement in Brussels.
 Efficient patent protection in Europe is a cost-intensive
 Overall, the acquisition of patent protection in all 27 EU
member states, costs around 36,000 EUR.
 Considerably more expensive, even for only the major
countries, than it is in economically competing jurisdictions
such as the US or China.
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European unified patent system
 Single European patent seeks to boost the innovative capacity
of European industry thanks to streamlining previously
bureaucratic procedures and decreasing costs.
 Only Spain and Italy, feeling linguistically disadvantaged,
refused to consent.
 The new unified patent will:
1. be cheaper and more effective than current systems in
protecting the inventions of individuals and firms;
2. provide automatic unitary patent protection in all 25
participating member states, cutting costs for EU firms;
3. cost just €4,725 when the new system is up to speed,
according to the European Commission.
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European unified patent system
 Not everyone is as optimistic as journalists and politicians,
 May be less costly to obtain, IF you want protection in more
than 5 or 6 states, which few patentees do.
 Likely to be a lot more costly and risky to litigate a UP
because: (1) complex litigation regime with different languages
involved, and (2) all your eggs will be in one basket!
 In view of this, industry and practitioners are generally highly
sceptical as to whether the UP/UPC system will really be
better in practice.
 In principle however it certainly is a good idea and so we must
make sure it works!
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New gTLDs
 The new generic Top-Level Domain Program was developed
by ICANN to increase competition and choice in the domain
name space (and ICANN just made $350 million in the
 There are roughly two dozen gTLDs now (.com, .org, .net, etc),
but soon, there will be hundreds – nearly 2,000 have been
applied for.
 Not a universally popular move by ICANN – a group of over
100 major international business associations and companies
campaigned against it…but it's happening!
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New gTLDs
 Google announced that it was targeting gTLDs such as
.google, .youtube, and .lol, to name a few – at a cost of
$185,000 per domain – which totalled up to more than
$18.6 million.
 Amazon is Google's biggest competitor, with both
companies bidding on 21 of the same domains, including:
.search, .play, and .drive.
 Microsoft also put in two applications that Google has also
applied for: .docs and .live.
 So why are they applying?
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New gTLDs
 The new gTLD create opportunities for company specific or
sector specific gTLDs.
 They could be a way to increase brand profile - but some
notable brand owners have recently withdrawn (eg Heinz and
General Motors).
 They may allow better security, eg KPMG.
 They may help in the fight against online counterfeiters – "if it
doesn’t end in .brand, it's not real"!
 But speculators are also applying for generic names, betting
that the new gTLDs may be the Internet’s next big gold mine
as they get the right to sell 2nd level domain names.
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New gTLDs
 One new company called Donuts was set up with $100m of
venture capital and has applied for 307 separate gTLDs – at a
cost of nearly $57 million.
 Behind the new speculators (and Amazon and Google) other
companies are also applying for multiple gTLDs. L’Oreal
applied for 15 separate domains, including .hair, .makeup, and
 Apple applied for just one (.apple, of course).
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New gTLDs - What do you need to do?
 The "Trademark Clearinghouse" opened its doors on 26
March 2013 and right holders can file evidence of their trade
 Sunrise period – trade mark holders who have registered with
the Clearinghouse will be given 30 days to register second
level domain names matching their trade marks before they
are offered to the public for registration.
 For 60 days after the end of the Sunrise periods, the new
gTLD registry must notify trade mark owners who registered
with the Clearinghouse if a third party attempts to register a
second level domain identical to their trade mark and they
have the right to object.
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New gTLDs - What do you need to do?
 But to take advantage of the sunrise periods, the trade mark
holder must provide a signed declaration of use and a single
sample to prove use
 Clearinghouse fees to file a single trade mark are $145 for one
year, $435 for 3 years, and $725 for 5 years – but it could be a
lot cheaper than trying to get it back from a third party.
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Community trade marks
 The Advocate-General's Opinion has recently been issued in
Case C-149/11 Leno Merken v Hagelkruis Beheer B.V.
 Better known as the ONEL/OMEL case.
 The case is about the requirement for "genuine use" of a
Community Trade Mark.
 A CTM which has not been put "to genuine use in the
Community in connection with the goods or services in respect
of which it is registered" within five years following registration:
1. is subject to revocation; and
2. cannot be relied on as an earlier trade mark right when
opposing a later filed CTM.
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Community trade marks
 So what constitutes "genuine use in the Community"?
 In particular, what of a trade mark which was only put to use in
one of the twenty-seven EU member countries - is this genuine
 The four questions referred to the CJEU in this case were:
1. Is use in one country always enough?
2. If not, is it never enough?
3. If it is never enough, what is needed?
4. Should the assessment of genuine use in the Community be
done in the abstract, without reference to the borders of the
territory of the individual Member States?
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Community trade marks
 Decision
 Article 15(1) of the Community trade mark Regulation must be
interpreted as meaning that
1. use of a Community trade mark within the borders of a single
Member State is not, of itself, necessarily sufficient to
constitute genuine use of that trade mark; but
2. it is possible that, when account is taken of all relevant facts,
use of a Community trade mark within an area
corresponding with the territory of a single Member State will
constitute genuine use in the Community.
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Community trade marks
Genuine use in the Community within the meaning of Article
15(1) is therefore use that, when account is taken of the
particular characteristics of the relevant market, is sufficient to
maintain or create market share in that market for the goods and
services covered by the Community trade mark.
Has the A-G dodged the question, or is his proposed answer the
pragmatic solution needed by CTM owners and their advisors?
Insert filename here
Date of presentation
Coffee Break
18 April 2013
North West WIN Annual Update
Peter Brook
Overview - lots of new cases!
 Endeavours
 Ampurius Nu Homes v Telford Homes
 Liability
 Kudos Catering v Manchester Central Convention Complex
 Material Breach, Termination and Affirmation
 The Trademark Licensing Co Ltd v Leofelis SA
 Good Faith
 Compass Group UK & Ireland Limited v Mid Essex Hospital
Services NHS Trust
 Yam Seng Pte Ltd v International Trade Corp Limited
 The Late Payment of Commercial Debts Regulations 2013
18 March 2013
Endeavours - Ampurius Nu Homes v
Telford Homes (2012)
"Telford will use its reasonable endeavours to procure completion
of the Works by the Target Date or as soon as reasonably possible
• The credit crunch intervened and Telford was unable to obtain
sufficient funding, suspended work and claimed this was not a
breach provided it had used reasonable endeavours to obtain
funding but had been unable to do so
• Lack of funding was not a defence
• Reasonable endeavours was designed to cover physical conduct
of the work e.g. inclement weather and shortage of materials
• The subjective difficulty that Telford experienced in raising
funding was irrelevant
18 March 2013
• An "endeavours" obligation will not always impose the same
level of obligation from one contract to another
• Reasonable – does not require the action if it disadvantages
the party; only one reasonable course is required, not all
reasonable courses
• Best – Onerous but not absolute; take all steps a prudent,
determined and reasonable party is acting in its own interests
and desiring to achieve the result; may impose an obligation to
invest or run risk of failure but not require risk of bankruptcy
• All reasonable – compromise between best and reasonable
(closer to best); use endeavours until all reasonable
alternatives are exhausted
• Conclusion – be clear about the objective to be achieved and
list steps to be taken?
18 March 2013
Liability – Kudos Catering v Manchester
Central Convention Complex (2013)
5 year catering contract ended 2 years early.
Both claimed repudiatory breach. Kudos
claimed £1.3m of lost profit
18.6 Indemnity and Insurance
"MCCC shall have no liability whatsoever for any loss of goodwill,
business, revenue or profits, anticipated savings or wasted
18 March 2013
Liability – Kudos Catering v Manchester
Central Convention Complex (2013)
CoA held – loss of profits was not excluded.
Need to consider the wider context and parties
commercial intentions.
• Kudos would have earned profit. If upheld then the clause could
deprive Kudos of any sanction for MCCC's breach of contract,
reducing the contract to an unenforceable statement of intent
• MCCC had not put forward a commercial justification for such a
wide exclusion of liability. CoA concluded there was none, and that
a literal interpretation of clause 18.6 would be contrary to business
common sense
• Held that the clause applied only to MCCC's liability for defective
performance, not for a refusal to perform
18 March 2013
Liability – Lessons
• Give a remedy for material breaches
• Explain why a clause is drafted in a particular way
• Flag onerous provisions e.g. use correct headings
• Cover liability on repudiation expressly
18 March 2013
Material Breach, Termination and
• Repudiatory breach – is the breach of contract sufficiently material
to allow the innocent party to treat the contract as at an end and
claim damages
• If A relies on B's alleged repudiatory breach and terminates, and the
basis for termination turns out to be untrue, the non-terminating
party may itself sue for wrongful termination
• After acquired knowledge of a (different) repudiatory breach can be
used to justify the termination (Boston Deep Sea Fishing case)
• What about damages?
18 March 2013
The Trademark Licencing Co Ltd v
Leofelis SA (2012)
• Use of the Lonsdale brand in Europe, exclusive licence granted but
Lonsdale licenced another person in Germany
• While a party can use after acquired knowledge of a repudiatory
breach to justify the termination, they cannot use the same
repudiatory breach as a ground for claiming damages
• Where terminating party unaware of the repudiatory breach and
termination would have happened in any event, terminating party
not entitled to profit from the decision to terminate by some later
emergence of fact
• Ensure repudiatory breach has occurred before taking steps to
terminate a contract
• Loss can only be claimed if it flows from the breach that the party
had knowledge of
18 March 2013
Good faith – an implied duty?
 Traditional hostility towards an implied
doctrine of good faith
 Many civil law jurisdictions, and more
recently Canada, Australia and the US
recognise a general duty to act in good
faith when forming and performing commercial contracts
 Scots law recognises a broad principle of good faith and fair dealing
 EU legislation has increased significance of the concept of good faith
in English Law
Are we moving towards English courts applying an implied duty of good
faith to English contract law in certain circumstances?
18 March 2013
Mid Essex NHGS v Compass Group
(trading as Medirest) [2013]
 Hospital FM Outsourcing Agreement
 Payment mechanism based on performance
 Financial deductions:
 £84,450 – out of date chocolate mousse
 £96,060 – 3 day old bagels
 £46,320 – out of date ketchup sachets
 Express obligation to "co-operate with each other in good faith…and
take all reasonable action as is necessary for…the Trust…or any
Beneficiary [e.g. patients] to derive the full benefit of the Contract".
 An implied term that the Trust would not exercise its discretion to
award itself payment deductions or service failure points arbitrarily,
capriciously or in an irrational manner?
18 March 2013
Compass – Take away points
 The express obligation in this context to co-operate in good faith
means "work together honestly endeavouring to achieve the two
stated purposes"
 While discretions involving absolute contractual rights are unlikely to
be subject to an implied term of the type at issue, those involving an
assessment or a choice as to the range of options in which the
interests of both parties are relevant, are likely to be
 Although you may be able to expressly exclude the implied term,
Jackson LJ warned that doing so would be "extremely difficult"
18 March 2013
Yam Seng PTE Ltd v International
Trade Corp Ltd (2013)
• Exclusive distribution agreement to YS
• YS terminated for ITC's repudiatory breach
• failure to supply product
• beach of exclusive territorial grant
• provision of false information
• YS pleaded an implied term in the agreement that parties would
deal with each other in good faith
• Held: D was in breach of contract and 2 breaches were repudiatory
in nature, justifying termination by YS
18 March 2013
An implied term (obiter – Leggatt J)?
 Judge acknowledges existence of such an implied term in certain
contracts (employment/partnership)
 No general duty of good faith under English law
 No difficulty in implying such a duty based on the presumed
intentions of the parties
 context sensitive
"Relational contracts" [joint venture agreements, franchise agreements
and long term distribution agreements] may require a high degree of
communication, cooperation and predictable performance based on
mutual trust and confidence and … expectations of loyalty which
are…implicit.. and necessary to give business efficacy to the
 Question of fact to be decided on a case by case basis
18 March 2013
The Late Payment of Commercial Debts
Regulations 2013 ("2013 Regulations")
 The 2013 Regulations came into force on
16 March 2013 and resulted in
amendments to the Late Payment of
Commercial Debts (Interest) Act 1998
("Late Payment Act")
 Changes to sections 4 and 5A of the Late
Payment Act
 Contracts concluded before 16 March
2013 will be excluded from the amended
 Debtors will be forced to pay interest and
reimburse reasonable recovery costs of
the creditor, if they do not pay for goods
and services on time
18 March 2013
The Late Payment of Commercial Debts
Regulations 2013 ("2013 Regulations")
Business to Business contracts
Contract is
silent on
Payment must be made within 30 days of the later of:
(i) receipt of invoice
(ii) receipt of goods or services
(iii) verifying acceptance of the goods or services
Parties can agree payment up to 60 days from the later of:
(i) receipt of invoice
(ii) receipt of goods or services
(iii) verifying acceptance of the goods or services
This 60 day period can be extended so long as it is in
writing and not "grossly unfair". Grossly unfair – all
circumstances considered in particular: deviation from good
commercial practice and contrary to good faith and fair
dealing; the nature of the goods and services; another
objective reason
18 March 2013
The Late Payment of Commercial Debts
Regulations 2013 ("2013 Regulations")
Business to Public Authority contracts
Contract is
silent on
payment terms
Payment must be made within 30 days of the later of:
(i) receipt of invoice
(ii) receipt of goods or services
(iii) verifying acceptance of the goods or services
payment terms
Parties can agree payment up to 30 days from the
later of:
(i) receipt of invoice
(ii) receipt of goods or services
(iii) verifying acceptance of the goods or services
No possibility to extend this period
18 March 2013
The Late Payment of Commercial Debts
Regulations 2013 ("2013 Regulations")
 Verification process introduced: maximum period of up to 30
days for a purchaser to confirm that goods or services conform
with the contract
 Statutory interest rate: Unchanged - Bank of England reference
rate plus at least 8%
 Compensation for recovery costs: In addition to fixed sums that
were previously available (£40, £70 or £100 depending on the size
of the debt) to compensate for the cost of recovering a debt, as a
result of the 2013 Regulations the supplier is also entitled to the
reasonable costs of recovering the debt that are not met by the
fixed sum
 The rights for a supplier under the Late Payment Act are not
compulsory – it does not have to claim interest
18 March 2013
Andrew Roberts
 Implementation of the recommendations of Lord Justice
 Majority of the reforms became effective on 1 April 2013
 Main focus on funding of litigation and control of costs
 More robust case management
 More haste, less speed?
 Ignore the new rules at your peril!
WIN Annual Update
18 April 2013
Key areas of change
 Funding
 Damages-based agreements (DBAs)
 Conditional fee agreements (CFAs) and after-the-event insurance
 Costs Management
 Proportionality
 Case Management
 Disclosure
 Expert evidence
 Witness statements
 Part 36
WIN Annual Update
18 April 2013
The underlying framework
 The Legal Aid, Sentencing and Punishment of Offenders Act
 The Legal Aid, Sentencing and Punishment of Offenders Act
2012 (Commencement No 5 and Saving Provision) Order
2013 (SI 2013/77)
 The Legal Aid, Sentencing and Punishment of Offenders Act
2012 (Commencement No 2 and Specification of
Commencement Date) Order 2012 (SI 2012/2412)
 The Civil Procedure (Amendment) Rules 2013 (SI 2013/262)
 The Civil Procedure (Amendment No 2) Rules 2013 (SI
WIN Annual Update
18 April 2013
The underlying framework continued
 60th update to the Civil Procedure Rules: Practice Direction
 61st update to the Civil Procedure Rules: Practice Direction
 The Offers to Settle in Civil Proceedings Order 2013
(SI 2013/93)
 The Damages-Based Agreements Regulations 2013
(SI 2013/609)
 The Conditional Fee Agreements Order 2013 (SI 2013/689)
WIN Annual Update
18 April 2013
Funding: damages-based agreements (DBAs)
 Permitted in England & Wales from 1 April 2013
 Lawyers conducting litigation in return for a share of the sums
 If claim is unsuccessful, the lawyer is not paid
 Subject to a 50% cap (lower for personal injury claims (25%))
 Different requirements for employment cases
 Claimant retains potential liability for the other side's costs
 Status of "hybrid" DBAs?
WIN Annual Update
18 April 2013
Funding: conditional fee agreements (CFAs)
and after-the-event insurance (ATE)
 For funding arrangements entered into on or after 1 April 2013,
CFA success fees and ATE premiums no longer recoverable
from the losing party
 CFA success fees and ATE premiums still recoverable where
payable under funding arrangements entered into prior to 1
April 2013
WIN Annual Update
18 April 2013
Costs management
 New costs management rules apply to all multi-track cases
commenced on or after 1 April 2013 (CPR 3.12 – 3.18)
 Exceptions and exemptions
 Commercial Court
 Claims in the Chancery Division, Technology & Construction Court
and Mercantile Court which exceed £2 million
 Requirement to file and exchange budgets in a prescribed
form (Precedent H)
WIN Annual Update
18 April 2013
Costs management continued
 Budgets generally to be of the estimated costs of the entire
 Budgets to be filed and served at an early stage
 Costs management orders (CMOs)
 Budgets to be reviewed regularly and revised as matter
 In assessing recoverable costs, the court will not depart from a
party's agreed or approved budget without good reason
WIN Annual Update
18 April 2013
 Revised overriding objective: this is now to enable the court "to
deal with cases justly and at proportionate cost" (CPR 1.1)
 For cases commenced on or after 1 April 2013, where costs
are to be assessed on the standard basis, only costs that are
proportionate to the matters in issue will be allowed
 To be proportionate, costs must bear a reasonable relationship
 the sums in issue in the proceedings
 the value of any non-monetary relief in issue
 the complexity of the litigation
 any additional work caused by the conduct of the paying party
 any wider factors e.g. reputation or public importance
WIN Annual Update
18 April 2013
Proportionality continued
 Costs that are held to be disproportionate may be disallowed
or reduced even if reasonably and/ or necessarily incurred!
 Proportionality will apply throughout the life of the case and not
just at the end
WIN Annual Update
18 April 2013
Case management
 Implementation of the overriding objective by the Court now
extends to "enforcing compliance with rules, practice directions
and orders" (CPR 1.2(f))- expect a more robust approach to
case management!
 Move towards managing cases earlier:
 Notice of Proposed Allocation
 Directions Questionnaire
 New model Standard Directions for multi-track claims (CPR
 Court has power to contact the parties to monitor compliance
with directions (CPR 3.1(8))
 Tightening up of rules relating to relief from sanctions (CPR
WIN Annual Update
18 April 2013
 Revised CPR 31.5 impacts upon multi-track cases
 No longer a presumption in favour of standard disclosure;
move to a more tailored approach
 Mandatory disclosure report (Form N263)
 Mandatory requirement to discuss and seek to agree the
approach to disclosure with the other side
 New 'menu' of disclosure options (CPR 31.5(7)) including:
 dispensing with disclosure altogether
 limiting disclosure to documents on which the parties rely
 disclosure on an issue by issue basis
 "train of enquiry" disclosure
 standard disclosure
WIN Annual Update
18 April 2013
Expert evidence
 From 1 April 2013, to obtain permission to adduce expert
evidence a party must now:
 identify issues to be addressed by the expert evidence
 provide an estimate of the costs of the proposed expert evidence
 Court now has power to direct that experts give their evidence
concurrently ("hot-tubbing") [PD 35, paragraph 11]
WIN Annual Update
18 April 2013
Witness statements
 From 1 April 2013, the court has express powers to manage
witness evidence (CPR 32) and can:
 identify or limit the issues to be covered by witness evidence
 identify those witnesses allowed to give evidence
 limit the length or direct the format of witness statements
WIN Annual Update
18 April 2013
Part 36
 Additional sanction introduced for defendants who fail to beat a
claimant's Part 36 offer
 Applies to Part 36 offers made by claimants on or after 1 April
 Unless the court considers it unjust, the claimant will be
entitled to an additional amount calculated as a percentage of
the damages or costs awarded
 Sliding scale: 10% of any amount awarded up to £500,000 and
5% of any amount awarded above £500,000 up to £1 million
 Maximum additional amount £75,000
WIN Annual Update
18 April 2013
 Increased emphasis on getting to grips with cases at the
outset (front-end loading)
 Greater need for proper planning of litigation
 Importance of budgets
 Expect little latitude if breach rules or orders!
WIN Annual Update
18 April 2013
North West WIN Annual Update
John Gollaglee
Health and Safety
Fee for Intervention
Corporate Manslaughter
Fee for Intervention (HSE)
 Cost recovery for previously free advice provided by Health
and Safety Inspectors
 In force October 2012
 Only applies to premises regulated by the Health and Safety
Executive (not local authority or environmental health officer
regulated premises)
 Current hourly rate is £124 (no VAT charged)
 Designed to make those who breach health and
safety legislation pay for the costs of correcting
their breach
WIN Annual Update
18 April 2013
Fee for Intervention (HSE) (2)
 Applies to almost all businesses and same hourly rate
charged irrespective of size
 Costs split where multi-dutyholder intervention occurs
 Costs charged in respect of
 carrying out visits
 writing notification of contraventions (including improvement
and prohibition notices and preparing reports)
 taking statements
 getting specialist input for complex issues and
 office work in support of the above
WIN Annual Update
18 April 2013
The material breach test
 Fee for Intervention can only be charged where the HSE
Inspector believes there has been a "material breach" of the
"A material breach is where you have broken a health and
safety law and the inspector judges that this is serious
enough for them to notify you in writing"
WIN Annual Update
18 April 2013
An 'appeal'?
 It is possible to 'appeal' against a Fee for Intervention invoice
 Level One 'query' (within 21 days)
 Invoice is reviewed by an HSE Senior Manager (independent of the
line management which generated the invoice)
 Level Two 'dispute' (within 21 days of the reply to the 'query')
 Invoice is reviewed by a panel of HSE Staff and an independent
 All HSE costs incurred in handling the dispute must be met by the duty
holder, unless the dispute is upheld.
WIN Annual Update
18 April 2013
Fee for Intervention – Prosecutions
 Is there a problem created by paying a Fee for Intervention
 Does payment of Fee for Intervention invoice constitute
acceptance of a "material breach"?
 Does acceptance of a "material breach" preclude an effective trial
in due course?
WIN Annual Update
18 April 2013
Corporate Manslaughter – where are we now?
 Past prosecutions
 Cotswold Geotechnical (Holdings) - £385,000
 MW Farms - £187,500
 Lion Steel Limited - £480,000
Note: Sentencing Council Guidelines state that a fine of £500,000 is usually the
starting (lowest) point for the court
 Current prosecutions
 PS & JE Ward
 MNS Mining Limited
 Mobile Sweepers (Reading) Limited
 The future?
WIN Annual Update
18 April 2013
Corporate Crime and investigations
Defence legal costs
Bribery Act 2010
Recovery of Legal Defence Costs abolished
 The change
 Rules on Defence Costs Orders amended
 Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act
 In force October 2012
 The impact
 In any criminal proceedings involving a defendant company
commenced after 01 October 2012, any defence costs order made cannot
include legal costs incurred by a company (unless proceedings are in the
Supreme Court).
 The response
 The importance of adequate legal defence costs insurance and
 Or, a 'fighting fund'
WIN Annual Update
18 April 2013
Bribery Act 2010
 In force since July 2011
 Enforcement Activity
 not a single corporate prosecution
 two prosecutions of individuals
 prosecutors have continued to consider and finalise bribery and
corruption investigations involving facts that pre-date the Bribery
 Under the Surface
 Civil Settlements – Rolls Royce and others
 result of internal investigations
 significant impact on M&A activity
WIN Annual Update
18 April 2013
North West WIN Annual Update
Martin Griffiths
General Overview
 There have been no significant changes in legislation in
relation to Real Estate over the last 12 months
 That is not unusual as Real Estate does not have a fast
moving framework and is not subject to significant European
 The case law in this area reflects the economic climate
21 March 2013
The termination of leases by tenant
break option
 In the current market tenants want flexibility and shorter lease
terms and/or break options in their leases
 Break options are not an absolute right to terminate a lease
 Break options often contain certain conditions which need to
be met to ensure the break option is correctly exercised
 Tenants need to be careful about the conditions on a break
 Landlords may have an opportunity to frustrate the break
option by reason of the conditions
21 March 2013
Typical conditions attached to a
break option
 The service of written notice
 There are no arrears of the annual rent payable
 There are no arrears of other financial payments under the
lease (including interest)
 The payment of a premium
 Vacant possession of the premises
 Material / substantial / complete performance of the terms of
the lease
The courts strictly apply all of these requirements
21 March 2013
Example of case law
 Canonical UK Ltd v TST Millbank LLC [2012]
 The tenant did not calculate correctly the level of premium. The court held
the lease continues
 PCE Investors Ltd v Cancer Research UK [2012]
 The break option was conditional on the payment of rent. The tenant failed
to pay the full quarter on the final payment. There was no apportionment
clause so the lease continues
 Gemini Bass Ltd v Parsons [2012]
 Break option held to be personal to a tenant and not passed on the
assignment of the lease
 NYK Logistics (UK) Ltd v Ibrend Estates BV [2011]
 The tenant did not get out of the premises in time and there was a breach of
the obligation to give vacant possession
 Avocet Industrial Estate LLP v Merol Limited [2011]
 The tenant failed to pay the sum of £130 in default interest
21 March 2013
Rent payable as an expense of an
 There are a significant number of administration orders being made particularly
in the retail sector
 Landlords are concerned over the administration process being abused to gain
a rent free period
 Most leases provide for the annual rent to be paid quarterly in advance on the
quarter days. This is an obligation to pay the whole quarter on that day, not
apportioned on a day by day basis
 For an administrator to be liable to pay rent as an expense of the
administration the administrator must be trading or using the Premises on the
actual quarter day. (Goldacre (Offices) Ltd v Nortel Networks UK Ltd [2009])
 If administrators are appointed one day after the quarter day they effectively
get 3 months rent free
 The Game Administration. The administrators were appointed on 26 March
2012 and obtained 3 months effective rent free. This is now challenged by a
group of landlords. It is expected to go to the Court of Appeal by the end of the
21 March 2013
Liz Clark
Heads of Terms
 What's the deal
 Keep it simple
 Highlight major issues up front
 Exclusivity
 Timetable
 Your moral barometer
18 April 2013
Sale and Purchase Agreement
Areas of tension
1. Warranties and indemnities
2. Warrantors' liability, basis of recovery
3. Limitations on liability
 individual
 "basket"
 time limits
4. What is "awareness"?
5. Retention
6. Purchaser's knowledge (excluded, reverse comfort)
7. Restrictive covenants
18 April 2013
Disclosure Letter
Areas of tension
 General disclosures
 Details of specifics
 The required standard of knowledge
18 April 2013
Where will we fall out? Heads
• I want costs if
something comes out
of DD
• I want costs if you
pull out
Middle ground
• Without consensus no deal will happen
• Costs clauses are a litigator's dream
18 April 2013
Where will we fall out? SPA –
Warrantors' Liability
• Joint and several
• Several liability
Middle ground
• Joint and several but cap out
• Sellesr can control their liability by
effective disclosure
18 April 2013
Where will we fall out? SPA –
Limitations on Liability
• Individual claims = low
• "Basket" = 1%
• 2 audits
• Individual claims = high
• "Basket" = 3%
• 12 months/1 audit
Middle ground
• There is no market standard
• Think about the reality, don't get hung
up on it!
18 April 2013
Where will we fall out? SPA – What is
• All employees, agents,
advisers … and the
office cat!
• Reasonable enquiry
Middle ground
• Identify the key individuals and ask
them the question
• Remember that sellers need to know
18 April 2013
Where will we fall out? SPA –
Restrictive Covenants
• 5 years
• 18 months
Middle ground
• Be realistic – nobody should be able
to hurt your business after 2 years if
integrated properly
18 April 2013
Where will we fall out? Disclosure
letter – General disclosures
• None
• All
Middle ground
• Agree them early, especially property,
environmental, IP registers searches
• Consider increasing liability financial
limits for key warranties
18 April 2013
Where will we fall out? Disclosure
letter - Specific disclosures
• Read the letter
• Start early
Middle ground
• Have a call to discuss the specifics,
don't be afraid to discuss them
• It's cheaper than litigation!
18 April 2013
Where will we fall out? Disclosure
letter – Data room
• Cannot be disclosed
• All disclosed
Middle ground
• Agree the principle early
• Do not be clever – if you do not
disclose effectively the only winner will
be the lawyers
18 April 2013
Getting to a sensible middle ground
 Shoot elephants
 The bigger you are the better your bargaining position –
 Put your negotiating requests in context
 Don't be afraid to horse trade
 Make sure the other side have good lawyers!!
18 April 2013
A lawyer's perspective
 Manager of legal services not a lawyer
 Clear scope
 You know your own business best
 Communication and settled client team
18 April 2013
Make life easy for yourself
 Start sooner, rather than later
 Be prepared, collate information
 Identify problems early
 Early tax advice
18 April 2013
And finally
 Changes to:
 the registration of security at Companies House, effective from 6
April 2013 (the Companies Act 2006 (Amendment of Part 25)
Regulations 2013)
 the share buy back provisions, effective 30 April 2013 (the
Companies Act 2006 (Amendment of Part 18) Regulations 2013)
18 April 2013
North West WIN Annual Update
Networking Lunch
18 April 2013

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