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Category Archives: Business

Can Sir Philip Green suppress media interest in his ‘banter’?

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So it was just banter. That is how British entrepreneur Sir Philip Green is defending his behaviour towards employees – and presumably defending his right to keep his behaviour secret with the full weight of a permanent High Court injunction. But hasn’t his statement to the Mail on Sunday (“There has obviously from time to time been some banter, but as far as I’m concerned that’s never been offensive”) rather undermined his case for such an injunction?

The essence of the case is that his behaviour, as covered by non-disclosure agreements with alleged victims, is a private matter. It comes within the English Common Law “equitable doctrine of confidence”, that is to say confidentiality, particularly applicable to the relationship between employer and employee. “The doctrine serves the public interest by encouraging trust, candour and good faith in legal relationships,” as Mr Justice Haddon-Cave expressed it in the original High Court injunction case (which Green and two associated companies lost).

One has to ask, of course, whether Sir Philip’s “banter”, was likely to encourage “trust, candour and good faith” with his employees. He insists: “I’ve got a good relationship with all my staff” – though some would seem to disagree. But the legal point is that Green and his lawyers have to establish the issue as one of confidentiality/privacy since that is the only way they can exercise power over the media to bar publication. This is the reason for his rather carefully worded (and hence rather odd) statement when his name was revealed in the House of Lords by Peter Hain:

“to the extent that it is suggested that I have been guilty of unlawful sexual or racist behaviour, I categorically and wholly deny these allegations”.   

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The Karen Buck Bill: Has the Government got developers off the hook?

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Has the UK Government done a devious deal to protect its favoured business interests among property developers and construction firms from a post-Grenfell crackdown on dangerous homes? Suspicious minds might think so.

After some years of prevarication and filibustering by the Tories, the Government has agreed to back a Private Member’s Bill from Labour MP Karen Buck requiring homes to be “fit for human habitation”. With one proviso: a single simple clause that would do most to help people living in potential Grenfell Towers – catastrophically dangerous homes – has been removed.

In its original form the Buck bill included a provision that would have had a huge and positive benefit: simply to bring into effect a piece of legislation that is already on the statute books and has been sitting there for more than 30 years.

If it were implemented by the Government,  Section 38 of the Building Act 1984 would make it much easier for tenants to sue for breaches in building regulations – the very issue that (it is alleged by some) may have led to the disaster at Grenfell Tower with 71 people killed by the fire.

The Government seems to have headed off Karen Buck’s calls for reform by backing her bill but with the clause that would have implemented Section 38 excluded. That 1984 legislation will remain uselessly in limbo.

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Neuberger explains his Arnold v Britton judgment

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Lord Neuberger, President of the UK Supreme Court, has offered useful insight into his intentions behind the controversial Arnold v Britton judgment that left holiday chalet leaseholders facing bills adding up to millions of pounds for services (critiqued here: Neuberger abolishes common sense).

In a talk to members of the Leasehold Valuation Tribunal* he underlined his commitment to a literal approach to be taken by courts when reading contracts, leases and legislation. But he rejects any suggestion that he has “changed the law” with the Arnold judgment. He considers the judicial art of “construction” – construing the true meaning of the document in question – and sets his judgment within the context of 40 years of judicial contractual interpretation. 

Construction
A judge’s role in “construction” or interpretation of contracts, is to identify the intention of the parties “by interpreting the words used in their documentary, factual and commercial context”, Neuberger said [referring to a case on wills in which he had made this point last year, Marley v Rawlings.] 

The principles for construing contracts and legislation were similar and leases should be treated no differently since, like contracts, they have “commercial consequences”.  

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Neuberger v M&S: was the BNP case really necessary?

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One has to ask: why did the UK Supreme Court even bother to hear, at vast public expense, the case of Marks & Spencer v BNP Paribas – in which M&S threw good money after bad in the hope of getting a few hundred thousands back from the landlords of their former London HQ in St Pancras Bay.

The money at stake isn’t the point. Was there a real issue of public interest such that the Supreme Court should have heard the whole matter again in order to come to the same view as the Court of Appeal a year earlier?

But the fact is that Lord Neuberger, President of the Supreme Court, is a man on a mission – to impose his literal interpretation of the world on the world of law. And this case was an ideal opportunity for him to drive the point home.

The legal point was simple enough: There was no term in the lease under which M&S would receive back prepaid rent after exercising a break clause and vacating the premises. So could such an apparently just and fair clause be implied into the lease “in the light of the express terms, commercial common sense, and the facts known to both parties at the time the contract was made”?  Read the rest of this entry

Bad for bees: FoE loses neonicotinoid pesticide case

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Environmental group Friends of the Earth (FoE) has failed in its UK High Court attempt to stop the emergency use of banned neonicotinoid pesticides, implicated in the decline of bee populations.

The use of three neonicotinoid pesticides is illegal under European Union law, though the law is due to be reviewed. The UK Department for Environment (DEFRA) authorised use of two of the pesticides for 120 days on about 5% of England’s oil seed rape crop after the National Farmers Union had made an application for their emergency use over the autumn.

The Hon Mrs Justice Patterson has now rejected an FoE challenge to the authorisation for the pesticides Modesto and Cruiser OSR, which contain neonicotinoids. In seeking a judicial review FoE claimed it had arguable cases that:

i) the UK Government did not give proper consideration to whether the risk to oilseed rape on the farms constituted an emergency;
ii) that no consideration was given to whether the risk could be contained by other means;
iii) that there was no compliance with the requirement that the authorisation should be limited and controlled.
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Joy v Joy-Morancho divorce case: not just about the Bentley

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For the press it is all about the cars – particularly the £470,000 vintage Bentley that Nichola Joy sought to have seized from her ex-husband Clive Joy-Morancho to pay towards her legal costs in their multimillion-pound divorce proceedings.

In the latest hearing, according to the national press, Mrs Joy “lost” that battle (Businessman wins divorce spat over vintage cars: Telegraph) but the truth is rather more complex. In particular High Court judge, Sir Peter Singer, made clear his dissatisfaction with Mr Joy-Morancho’s case (a fact that went unreported by the press), calling it a “sham, a charade, bogus, spurious and contrived” – and possibly even a fraud.

Mrs Joy does not avoid a tongue lashing, either. “What she says must be subjected to close scrutiny and approached with a degree of scepticism having regard to the many extravagant and often inconsistent observations to which she committed herself.”

For judges involved in this long-running (and continuing) case it must have something of the feel of a sophisticated whodunnit involving tens of millions in assets. Whose are they? Where are they? Is anyone wilfully hiding them? For others it’s a moral tale as the super-rich and their cash are sucked into the dark vortex that is a tax-efficient financial trust. As such, the papers’ reports have missed the real story. Read the rest of this entry

Anderson and surveillance: RIPA is still the law – and it’s being broken

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The Anderson report on surveillance (according to the media) suggested that UK security services should “keep” their powers of bulk surveillance – the downloading and storing of communications and internet material, basically without limit except the limitations of the technology they have. The report has come out in the same week that the Metropolitan Police were unable to confirm or deny (for which read “confirmed”) that dummy mobile phone towers, or Stingers, were lifting material from the phones of passers-by, apparently ad hoc and without specific investigatory purpose.

But it is really not clear that bulk surveillance powers do have legal sanction in Britain – and nor does Anderson say unequivocally that they do. Which is why, under Theresa May’s new “snooper’s charter” (the draft investigatory powers bill), she will be seeking to legalise something she claims is perfectly legal already – but really isn’t.

So what is the law? The key piece of legislation is the Regulation of Investigatory Powers Act 2000 (RIPA) – which Anderson wants replaced. This is often referred to as source of surveillance powers for just about anyone from GCHQ to schools checking on the residency of parents of local authorities looking at our recyling.

In fact it is intended to control, curb, restrict and limit surveillance – and in particular it is intended to prevent the state’s (and private bodies’) disproportionate bulk downloading and retention of the private information – which is just what the security forces do now as far as they technically can and which they will be able to do far more effectively under the investigatory powers bill, requiring ISPs, Google and the rest to keep such information for them. Read the rest of this entry

Housing associations: right to buy versus right to property

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Fast forward five years. A new leftist government is elected in Britain (majority 12) with a flagship policy to extend home ownership to “Generation Rent”. Legislation is drawn up to force private landlords to sell their properties at a discount to their tenants under a radical right to buy scheme. Unfortunately there is a stumbling block. One of the few human rights still standing amid the ruins of the old human rights regime following the Human Rights (Abolition of Trivial Provisions) Amendment Act 2017 is the right to property. Forcing owners of rental properties to sell them offends against Part 1 Chapter 1 Article 1(1) of the new British Bill of Rights which says:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

Fortunately, though, there is a precedent. Backtrack five years and the Conservative Government of 2015 had just such a radical policy of redistribution of property. It similarly forced property owners to sell homes to their tenants at a discount of 35% or more – caring not whether those property owners were driven to bankruptcy as a result. The fact that the property owners are housing associations doesn’t mean they don’t have human rights: they are private bodies (hence “legal persons”) and the flats they let out are their private property. The wording quoted above is that of Article 1 Protocol 1 of the European Convention on Human Rights, which applies now and which the Tories have no known plans to repeal – because the human right to property is one of the “important” human rights they set great store by. Read the rest of this entry

Capita ordered to pay costs after failure to provide court interpreters

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A judge has ordered outsourcing group Capita to pay £13,000 in local authority costs after an adoption case had to be postponed because the company failed to provide interpreters. Sir James Munby, President of the Family Division condemned as a “truly lamentable state of affairs” Capita’s repeated failure to provide translators for a Roma couple from Slovakia to challenge the adoption of their two children.

The case exposes an apparent flaw in the Capita service based on its failure to put in place contracts with interpreters that will ensure they appear in courts when needed. It also exposes Capita to the risk of further cost orders against it in other cases, dealing a blow to the contract between its subsidiary, Applied Language Solutions Limited (ALS), and the Ministry of Justice.

At a previous hearing Munby P noted: “the contractual arrangements between Capita and the interpreters it provides do not give Capita the ability to require that any particular interpreter accepts any particular assignment, or even to honour any engagement which the interpreter has accepted”. Two interpreters who had accepted the work for 7 May 2014 later cancelled. ALS informed the court at 2pm on the day before the case. An outraged Munby said in the latest cost orders case (14 November 2014):

“This was done by an automatically generated email which included the words ‘We apologise for any inconvenience caused’ – a banal and formulaic statement hardly reflecting the fact that a failure to provide interpreters, particular in a case such as this, causes much more than ‘inconvenience’ to all concerned, not least to the anxious parents. The timing of the sending of this email was, I am told, in accordance with an agreed protocol. That may be, but, for reasons which will become apparent, it does not seem to me to affect Capita’s liability, nor does the fact, as I was told, that court staff have access, by way of a web portal, to the current status of any booking at all times after the booking has been made.”   Read the rest of this entry

UK court backs security ban on anonymised telephone calls system

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A UK court has upheld the Government’s right to ban commercial marketing of a money-saving telephone service on security grounds because it could provide anonymity for callers. The service uses “GSM gateways” that can reduce call charges by rerouting calls through mobile phone SIM cards – but it also allows users to make anonymous calls, potentially avoiding government surveillance.

The Court of Appeal refused to award companies damages for a government licensing system that in effect bans the GSM gateway services they offered and largely halted their business.

Lord Justice Richards said: “Since the time when the existence of GSM gateways first came to light in 2002, the Home Office has maintained that the exemption of commercial operators of such gateways from the licensing regime would be seriously detrimental to public security.” He explained the system thus:

“When a call is routed through a GSM gateway, the caller line identification of the party originating the call is replaced by that of the SIM card in the GSM gateway, so that the identity of the originating caller is masked. This is said to give rise to serious public security concerns for law enforcement agencies in relation to the investigation and prevention of terrorism and serious crime.” (Recall Support Services Limited et al v Secretary of State for Culture, Media and Sport [2014] EWCA Civ 1370 para 9.)

Recall Support Services and five other firms sought to challenge the ban under a European Union law to encourage the telephony sector to develop. They had originally claimed £415m in damages for alleged losses as a result of the UK Government’s maintenance of a restriction on the commercial use of GSM gateways despite a European Commission directive intended to free up telephony services. Read the rest of this entry

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