Recent Legal Articles & Publications

Gillhams Solicitors and Lawyers

Articles & Publications - Recent Additions

June 2010

Litigation & Disputes

Enforcement of the Undertaking as to Damages
Interim relief may be awarded, but at the risk presented by the undertaking as to damages, which is usually given to the court by the applicant as a condition of the court awarding the relief.

Enforcement of Judgments

Intellectual Property Law

Registering your Logo – Obtaining Intellectual Property Protection
Trade mark registration grants owners of logos monopoly rights to use the logo in business

Choosing Business Names

May 2010

Commercial Law

Managing Business Risk and Terms of Contracts
Business contracts may be used to improve on the general law and the rights of the parties to the contract. In this feature, we discuss management of intellectual property rights and how better rights may be obtained in business contracts.

Managing Liability & Risk

April 2010

Litigation & Disputes

Impossibility of Performance – Inconsistent Obligations in Contracts in English Contract Law
There is nothing preventing a contracting party entering into two contracts which are impossible to perform when they are read together. The result may be that the contracting party is in repudiatory breach of one the contracts.

Contract Management

Litigation & Disputes

Inspection, Experiments and Samples of Property before Court Litigation
There are a number of avenues available to intending litigants to procure evidence prior to the commencement of proceedings. Court orders may be obtained to permit the inspection of property, take samples or carry out experiments on property.

Court Orders

February 2010

Litigation & Disputes

Failures to Comply with Court Orders and Directions - Playing by the Rules
Courts have extensive powers of case management to regulate the conduct of legal proceedings. Here, we discuss what may be done to apply for relief against adverse case management orders.

Court Orders

January 2010

Litigation & Disputes

Freezing Orders
English Courts may make an award of a freezing order in the event that there is a risk of dissipation of assets by a judgment debtor.

Court Orders

September 2009

Litigation & Disputes

Enforcement of Foreign Judgments in England
Judgment in a foreign jurisdiction may be used to recover against the assets of the defendant in England and in Europe. In depth discussion of the step required to enforce a foreign judgment in England.

Court Orders

July 2009

Intellectual Property Law

Managing Intellectual Property Rights and Contract Law
Intellectual property rights are properly managed by commercial contracts, which set out the terms and conditions upon which rights may be used

Asset Management

April 2009

Commercial Law

Company Directors’ Liability for Company Cheques and Presentation
Company directors may have personal liability for company cheques in circumstances where cheques are unpaid on presentation

Corporate Management

March 2009

Litigation & Disputes

Rights to Sue and Selecting Defendants to Sue in England
To commence legal proceedings in England, a claimant must identify the proper defendant to the proceedings. In cases involving a foreign defendant, selecting the proper defendant may present difficulty as different countries recognise legal personality in entities not recognised in England.

Court Orders

Company & Corporate Law

Duties of a Director in the Insolvency of a Company
Directors have duties to a company in their stewardship, which continue in the insolvency of a company.

Corporate Management

February 2009

Employment Law

Employed Or Self-Employed? The Legal Test
When is a person self-employed, and when are that employed? A number of tests apply to determine whether a person is self-employed. We discuss some of them here

Employer/Employee Relations

Intellectual Property Law

Infringement of UK Trade Marks by Foreign Websites
When a UK trade mark is used on a foreign website, the question arises whether the trade mark is infringed by use on a foreign website.

Managing Intellectual Property

January 2009

Commercial Law

Fraud, Dishonesty and the Tort of Deceit
The tort of deceit, which is used for legal claims involving fraud, is available to claimants wishing to assert that they have suffered damage as a result of reliance on lying and/or dishonest words or conduct

Fraud & Deceit

Commercial Law

Variations and Changes to Price in Commercial Contracts
Planning for changes and variations of prices of the course of a long term contract requires flexibility to be built in to a commercial contract.

Contract Management

December 2008

Litigation & Disputes

Recovery of Judgment Debts in England
There are a number of ways and means available to judgment creditors to recover judgment debts after successful legal proceedings.

Judgment Debts

October 2008

Litigation & Disputes

Enforcement of Foreign Intellectual Property Rights in England
Intellectual property rights created in countries other than England may be able to be enforced in England, where infringement takes place within the jurisdiction.

Enforcement of Judgments

September 2008

Company & Corporate Law

Setting Up In Business – Choosing a Trading Style of Business
Businesses may be set up in a variety of ways. In this article, we step through the different trading styles for businesses in England.

Corporate Management

Commercial Law

Liability for False Statements – Misrepresentation at Law in England
A false statement may taint the formation of a contract, giving rise to a right to damages and other remedies in English law.

Contract Management

Litigation & Disputes

Obtaining the Identity of Defendants in English Litigation
Simply because a claimant with a good claim cannot identify the actual defendant to sue is not left without recourse. A court has jurisdiction to order persons who have information that may lead to the identification of the defendant to disclose that the information. Accordingly, unidentified defendants′ identities may be made the subject of disclosure by a court in England.

Court Orders

Intellectual Property Law

Software Protection
This article gives the low-down on protection of software under English law.

Software Protection

August 2008

Intellectual Property Law

Managing Intellectual Property Audits
Management of a portfolio of intellectual property by an audit requires a commercial eye for the industry within which a company trades and a knowledge of intellectual property rights.

Intellectual Property Rights

Litigation & Disputes

Private International Law - Jurisdiction clauses and Choice of Law Clauses
In resolving disputes, choice of law clauses and jurisdiction clauses may play a key role in determining whether the dispute may be heard in England.

Managing Liability & Risk

Commercial Law

Substantial, Material and Fundamental Breaches of Contract
Business contracts may name different thresholds for breach which give rise to a right to terminate in the document. Superior courts have considered the meaning of these different standards, which include 'fundamental breach', 'substantial breach' and 'material breach'. In this article, we consider the meaning of these terms in the context of commercial contracts.

Contract Management

Intellectual Property Law

Managing Intellectual Property: the Benefits of Trade Mark Licensing
A look at the legal basis upon which licensing trade mark rights may create additional revenue streams.

Intellectual Property Rights

July 2008

Intellectual Property Law

Employees´ Rights to Compensation for contributions to Patented Inventions
Where the invention is of ′outstanding benefit′ to an employer, the employee becomes entitled to a fair share of the benefit.

Managing Intellectual Property

Intellectual Property Law

Copyright Protection in the UK
An overview of the types of works protected by copyright, and a synopsis of what copyright protects, and what it does not.

Intellectual Property Rights

June 2008

Commercial Law

Bringing a Contract to an End in the UK
Breaking up can be hard to do. Commercial contracts sometimes create difficulty in when a party wishes to terminate; this may be avoided with a modicum of foresight and contemplation of what might happen in the event of fallout between the parties at the outset of the contract.

Contract Management

Commercial Law

Remedies: Breach of Contract
In this article, we step though the remedies for breach of contract in the UK: damages; specific performance; injunctions; restitution, amongst others

Contract Management

Commercial Law

Termination Clauses and Notice under UK Contract Law
Termination provisions of a contract set out the means by which a party may bring a legally binding contract to an end. The Court of Appeal considered whether service of notice of termination led to an automatic termination of the contractual obligations between the parties.

Contract Management

May 2008

Commercial Law

Debt Recovery: Statutory Demands and Bankruptcy
Statutory demands are a tool used for debt recovery in the UK, and must be dealt with promptly. If they are not addressed early, it will lead to a presumption of insolvency when a petition for a winding up order is made.

Payment of Debts

Commercial Law

Difference between Privity of Contract, Novation and Assignment under UK Law
It is important to appreciate limitations of contract law and the principles developed over course of the last hundred years, which are just as applicable today as they were when created.

Contract Management

April 2008

Intellectual Property Law

Use of Competitors? Trade Marks and Comparative Advertising in the United Kingdom and Europe
Ordinarily use of competitors’ trade marks amounts to a trade mark infringement and/or passing off. However the Trade Marks Act 1994 and European legislations legitimise use of competitors’ trade marks provided that the use takes place in a particular way, and certain tests are satisfied.

Asset Management

Commercial Law

The Law of Mistake in the UK
Where the parties to a contract operated under a mistake when entering into the contract, the contract is voidable, or in certain circumstances, void.

Contract Management

March 2008

Intellectual Property Law

Maintaining Registered Trade Mark Rights in the UK
Once registration has been obtained for a trademark, the grant of intellectual property rights is not unconditionally perpetual.

Brand Protection

Commercial Law

Exclusion Clauses and Limitations of Liability in Internet Business Contracts
Exclusion clauses partly seek to exclude or limit their liability under the contract, by expressly stating that liability will not arise in a party or will be limited for a number or all defaults under the agreement on their part. Rules of interpretation of contracts state that exclusion clauses must be clearly expressed and unambiguous, or they will be ineffective.

Managing Liability & Risk

January 2008

Employment Law

Directors and Employees – When is a Director an Employee of a Company?
The Employment Appeals Tribunal has considered whether directors of a company are also employees of the company.

Employer/Employee Relations

Company & Corporate Law

Fines, Companies, Company Directors and Proportionality
In a Court of Appeal decision dealing with occupational health and safety, the Court took into consideration the capacity of the company and the director to pay a fine, and reduced it accordingly.

Corporate Responsibility

Intellectual Property Law

Protecting Goodwill and Reputation of a Business in the UK: The Law of Passing Off
Passing off may be used for protection of trade reputation under UK law.

IP Ownership

Intellectual Property Law

Briefing Note - Copyright Infringement in Images & Photographs and Infringement
The House of Lords decision of Designers Guild clarifies the test for copyright infringement in the UK.

Intellectual Property Rights

December 2007

Company & Corporate Law

Directors’ Duties Under the Companies Act 2006
The Companies Act 2007 enumerates specific duties on directors of UK companies to clarify the law imposed on the administration of companies in the United Kingdom

Corporate Management

November 2007

Company & Corporate Law

Enterprise Investment Scheme Shares and Investment Capital
Enterprise Investment Scheme shares allow tax incentives to entrepreneurs to encourage venture capital funding and relief on capital gains tax.

Buying a Business

Company & Corporate Law

UK Shareholders' Rights and Dividend Waivers
Shareholders in UK companies may elect to waive their right to dividend payments, provided that certain prerequisites are satisfied.

Accounting Requirements

October 2007

Commercial Law

Intellectual Property Disputes: Offers to Settle under CPR Part 36
Part 36 offers are a useful tool to use in business and intellectual property disputes to avert further litigation.

Judgment Debts

Employment Law

Mandatory Employee Consultations for Collective Redundancies
A recent decision of the Employment Appeals Tribunal requires consultation with employees to consider whether redundancies may be avoided at the time closures are proposed.

Redundancy

August 2007

Litigation & Disputes

Reducing Damages Awards: Mitigation of Loss in Contractual and Intellectual Property Claims
Litigants are obliged to take all reasonable steps to mitigate their loss suffered. Those that fail to do so are not entitled to recover the loss, and such sums are reduced from the damages payable the defendant. The principle applies regardless of the nature of the claim, including breach of contract and intellectual property rights claims.

Damages and Compensation

Company & Corporate Law

Fraudulent Misrepresentation and Recovery of Damage: Corporate and Investment Fraud
The measure of damages for fraud is higher than other areas of law. The measure contrasts with the law of negligence and contract law.

Fraud & Deceit

Litigation & Disputes

Phoenix Companies, Insolvency Law and Recovery by Creditors
In certain circumstances, creditors may recover from Phoenix companies, including where management is the same and the phoenix company has not been administered in accordance with the Companies Act and Insolvency Act.

Asset Management

July 2007

Intellectual Property Law

Awards of Compensation for Intellectual Property Infringement: Damages in Copyright Cases
The rise and rise of intellectual property rights has seen the rise of claims by business dealing in photographs, software and films and music making claims against small and medium sized enterprises for copyright infringement. There is no innocence defence available infringing business; the issue quickly becomes one of the sum of compensation – or damage - that is to be paid.

Infringement

April 2007

Employment Law

Defective Compromise Agreements & Employment Law
Compromise agreements must comply with the provisions of the Employment Rights Act to properly protect employers from new claims being brought at a later date.

Employer/Employee Relations

Litigation & Disputes

Employee Fraud - What to Watch Out For
Fraud from within company is difficult to detect and must be dealt with appropriately to avoid adverse claims by employees.

Unfair Dismissal

Commercial Law

Commencing Performance of a Contract prior to Concluding Contract Terms
Companies are frequent caught out by providing services prior to finalising contractual terms. In cases such as these, a court has regard for the contract - which is the legally binding agreement - when disputes arise the contract has been entered into.

Contract Management

March 2007

Employment Law

Employment Appeal Tribunal Rules on Religious Discrimination Claim
Discrimination claims by employees can be close run cases. It is important to respect the religious beliefs and customs of employees in disciplinary matters.

Discrimination

Litigation & Disputes

Agreeing Contracts and Avoiding Legal Ambiguity
Commercial contracts are serious documents and require an assessment of risk prior to deciding whether it is worthwhile avoiding taking legal advice.

Contract Management

February 2007

Intellectual Property Law

Blimey - Was FCUK Lawful?
An analysis of the reasoning in reaching the decision that FCUK was lawful in the United Kingdom.

Intellectual Property Rights

January 2007

Employment Law

Controlled Access to UK Labour Market for New Accession Countries
Quota systems apply to some immigrant workers in the United Kingdom

General

Company & Corporate Law

New Corporate Options for Charities
The Charities Act 2006 establishes new ways for charities to incorporate themselves. The Charity Commission also has the power to suspend or remove trustees.

Setting up in Business

Employment Law

Enforcement of Restraint of Trade Clauses - Agency Fails to Enforce
Restraints of trade are enforceable unless they are reasonable and only go so far as to protect the legitimate interests of the business seeking protection.

Restraints of Trade

November 2006

Intellectual Property Law

Typefaces, Fonts and Characters - Intellectual Property Protection in the United Kingdom
Electronic fonts and typefaces may be protected by copyright law in the United Kingdom. Industrially applied typefaces may be protected as registered designs

Designs Protection

Litigation & Disputes

Recovering Legal Fees and Court Costs from Third Parties in Litigation
This article discusses the prospect of recovering legal fees from persons who are not parties to the legal proceedings.

Judgment Debts

Commercial Law

Liability of Salaried Partners in Partnerships
Salaried partners may be liable for the debts of the partnership in certain circumstances, says the Court of Appeal

Setting up in Business

Litigation & Disputes

Architects and Defective Drawings
A builder may be negligent when they ought to recognise defects in architects' drawings.

Contract Management

Commercial Law

Protecting Intellectual Property - Preparing for Competition from Employees and Consultants
Legal measures may be put in place to maximise the prospects of success against information theft and industrial espionage by ex-employees and consultants.

Information Theft

Commercial Law

Part II – Information Protected During the course of Employment
Information may be protected as trade secrets, which prevents an employee or freelancer from using the information after their engagement has ended.

Information Theft

Commercial Law

Part III – Post-Contractual Restrictions - Restrictive Covenants
Properly drafted restrictive covenants create a legal means to prevent employees and freelancers from competing against their former employer for a limited period.

Restraints of Trade

Commercial Law

Part IV – Intellectual Property Rights & Post Employment or Contractual Relationships
Legal proceedings including passing off, misuse of confidential information and trade secrets, conversion and detinue, and copyright infringement may be available to protect against use of information where the factual matrix fits the cause of action.

Industrial Espionage

Commercial Law

Part V – Intellectual Property Rights and Employee Competition - Conclusion
The conclusion to our five part series on competition from ex-employees and ex-consultants against former employers

Information Theft

Commercial Law

Part VI – Protecting Confidential Information & Trade Secrets - Suggestions to Improve Prospects of Success
Suggestions and tips to increase the likelihood that a court will enforce protection of confidential information and trade secrets.

IP Ownership

Employment Law

Contractual Redundancy Terms Create Unexpected Liability
The timing of redundancy payments may be important to tax liabilities

Redundancy

Employment Law

Employment Status and Tax Payments
Employers are not entitled to an setoff where the employee is under a misunderstanding of their tax obligations

Employee Tax

Employment Law

Retirement Age and Discrimination - A Check List for Employers
A checklist of compliance with the Employment Equality (Age) Regulations, which came into force on 1 October 2006

Age Discrimination

October 2006

Employment Law

Sleeping on the Job and Employment Payment Claims
In this case, an employee who was required to be at work as a night watchman was entitled to be paid for sleeping whilst in the course of his employment.

Monitoring at Work

Company & Corporate Law

Directors Loans and Duties to UK Companies
In this article we review a decision whereby a director was found liable for director's loan, although he had no subjective intention in authorising the loans.

Company Constitution

Commercial Law

Disposing of Waste Electrical and Electronic Equipment
Disposal of waste material is set to become a regulated activity, requiring manufacturers to produce electrical equipment responsibly.

Asset Management

Land & Property Law

Abuses of Process and Commercial Litigation
Parties to commercial litigation should be aware that they have one chance to argue points of law in litigation, and concessions in earlier litigation prevent them from raising the point in subsequent litigation.

Commercial Tenancies

Litigation & Disputes

Partnership Law & Misleading Statements – Court Enforced Duties of Good Faith
In business relationships that involve a relationship of the utmost good faith such as partnerships, partners should be aware of their duties to avoid that disputes and consequent litigation.

Setting up in Business

September 2006

Commercial Law

Commercial Contracts and Economic Duress
Duress may be claimed commercial enterprises that are victims of illegitimate threats and unfair pressure that affect economic interests.

Contract Management

Commercial Law

Terms of Contract and Penalty Clauses in English Law
Contract terms requiring a person in breach of contract to pay a sum of money may be a penalty clause or a liquidated damages clause. Several tests and presumptions have been developed over time that allow some clarify in making an assessment as to whether a contract term will be a penalty.

Contract Management

Commercial Law

Briefing Note - Legal Binding Agreements and Verbal Contracts
The terms of legally binding agreements may be in writing or formed by verbal statements or conduct of the parties. The article examines some of the legal requirements of binding agreements and the difficulties with verbal contracts.

Contract Management

August 2006

Intellectual Property Law

Briefing Note - Overview of Community Designs Protection
A synopsis of registered design rights and the scope of protection within the UK and Europe

Designs Protection

Intellectual Property Law

Briefing Note - Ownership and Incidents of Ownership of Designs
The law determining the ownership of designs is similar to the law of copyright. The designer is the first owner of the design unless they are employed.

IP Ownership

Intellectual Property Law

Briefing note - Registered Designs, Excluded Subject Matter and Infringement
A short summary of the subject matter of designs not able to be registered as designs under the Designs Act UK, when design rights are lost and rights to claim infringement of a design.

Designs Protection

Intellectual Property Law

Whistleblowers and Disclosure of Confidential Information
The public interest defence is available to whistleblowers for protection where the public interest outweighs the interest of the person wanting to maintain the confidentiality of the information.

Business Secrets

Intellectual Property Law

Briefing Note: Contracts for Packaged Software Licences Agreements and Checklists
Our IT lawyers consider some of the key issues in packaged software licence agreements, and some general issues in software licences - software that has not been built to the specification of any customer.

Managing Intellectual Property

Intellectual Property Law

Patent Law - Methods Already Employed in Practice Cannot Be Inventive Steps
The Privy Council make a ruling on the meaning of obviousness in under the Patents Act and the meaning of inventive step.

Managing Intellectual Property

Litigation & Disputes

Briefing Note: Third Parties and Adverse Costs Orders
When third parties fund litigation, there is a significant risk that in the event of losing the fight that they will be ordered to pay the legal costs.

Managing Liability & Risk

Company & Corporate Law

Limited Liability Partnerships
An examination of Limited Liability Partnerships as a legal entity from which to conduct business.

Company Constitution

July 2006

Intellectual Property Law

Prior Patent Valid In Spite of Error
A consideration the House of Lords ruling that a mistake in a Patent Application does not necessarily prevent an inventor from securing their intellectual property rights.

Intellectual Property Rights

Company & Corporate Law

Partnership Assets – Decision Overturned
An examination of the division of partnership assets on the dissolution of the Partnership Act 1890.

Company Constitution

Commercial Law

Data Protection Case – Leave to Appeal Refused
A consideration of what amounts to personal data under the Data Protection Act 1998.

Data Protection & Privacy

Employment Law

Transfer of Undertakings (Protection of Employment) Regulations 2006
An analysis of the effect the TUPE Regulations 2006 will have on buying and selling businesses.

TUPE

Employment Law

Age and Sex Equality – House of Lords Ruling
The House of Lord's decision in sex discrimination and unfair dismissal availability for over 65's.

Discrimination

Employment Law

Retirement Age and TUPE
A discussion relating to unfair dismissal in relation to retirement age and the TUPE Regulations applicable to buyers of a business.

TUPE

Company & Corporate Law

Company Directors' Duties Expanded
A explanation of the extension of directors' duties under the new company legislation due to come into force in 2007.

Managing Liability & Risk

Litigation & Disputes

Briefing Note - Use of Defined Terms in Commercial Contracts
CIP contracts rely on the meaning of the terms given to them by the parties and a 'battle of the forms' ensued in this case for an unanticipated result. COnfusion as to contractual terms should be avoided at all costs.

Contract Management

June 2006

Litigation & Disputes

Limitations of Liability - Software Licence Agreements and Software Development Contracts - Part 10
In this tenth part of the series, our lawyers consider limitations of liability and how they might be applied in software development agreements.

Contract Management

Commercial Law

Checklist for Software Licence Agreements - Software Licence Agreements and Software Development Contracts
This article contains a basic checklist of clauses that may be included in software licence agreements.

Contract Management

Intellectual Property Law

Software License and Development Contracts - Part 1
In this first article in the series, we consider the fundamental differences between software licence agreements and software development contracts.

Licensing

Intellectual Property Law

Terms of Licence - Software Licence and Development Agreements - Part 2
In this second in the series, our software solicitors consider the flexibility of intellectual property rights & copyright licensing.

Contract Management

Intellectual Property Law

IPR Indemnities - Software Licenses - Part 3
In this third article in the series, our solicitors consider IPR indemnities in the context of software licences.

Intellectual Property Rights

Intellectual Property Law

Payment for Licences - Software License Agreements - Part 4
In this fourth in the series on software licensing, we consider some options for payment of licences in software development contracts & agreements.

Contract Management

Intellectual Property Law

Improvements and Upgrades - Software License Agreements - Part 5
In this fifth part of the series, we consider contract terms catering for improvements and upgrades to licensed software.

Contract Management

Commercial Law

Acceptance Testing - Software Licence Agreements and Software Development Contracts - Part 6
In this sixth part of a series on software licensing, our solicitors consider factory acceptance testing and user acceptance testing as part of the software development lifecycle.

Contract Management

Intellectual Property Law

User Documentation & Escrow Agreements – Software Licence Agreements and Software Development Contracts - Part 7
In this article we consider the options for escrow agreement, and when they are appropriate in software development agreement and user documentation requirements.

Outsourcing & Procurement

Commercial Law

Liquidated Damages and Penalty Clauses - Software Licence Agreements and Software Development Contracts - Part 8
In this eighth part of a series, we consider penalty clauses which may unenforceable at law in software development contracts and agreements. The purpose of such contract clauses is to avoid the need for a judge to quantify the actual damage caused by the person in breach.

Contract Management

Commercial Law

Termination and its Consequences - Software Licence Agreements and Software Development Contracts - Part 9
In this the ninth in the series, our solicitors consider termination clauses and the consequences of termination in software development contracts and agreements.

Contract Management

Company & Corporate Law

Directors' Liabilities under the Companies Act UK
In most circumstances, companies and its directors and shareholders are considered separate legal entities, with profound consequences on liabilities of directors for the acts of a company.

Managing Liability & Risk

May 2006

Litigation & Disputes

White Hat Hacking and Computer Software Security
A consideration of the commercial risks and security issues arising from White Hat hacking, otherwise known as ethical hacking in the context of computer security and the role of software.

Managing Liability & Risk

Commercial Law

Briefing Note - Infiltration of Viruses and Insurance Contracts
A brief consideration of the coverage of insurance contracts over data loss and corruption and the implications of failing to ensure the insurance contracts are adequate.

Contract Management

Commercial Law

Briefing Note - VAT Registration and Recovery of VAT
Registration for VAT can only be refused in limited circumstances by Customs & Excise. One of these is where economic activity is not taking place.

Taxation

Employment Law

Briefing Note - Employers' Liability for Secondary Exposure to Harmful Materials
An assessment of employers' liability for damage caused to persons connected with their employees.