Knowledge

In its Akzo Nobel judgement, issued on 17 September 2007, the European Court of First Instance has re-affirmed the long-standing rule that EC law does not confer legal privilege protection on communications between in-house lawyers and their internal clients (For further analysis of the implications of this case please click here).

The Information Commissioner’s Office has recognised that following the Court of Appeal’s decision in the Durant case and the Article 29 Working Party opinion on the concept of personal data, that data controllers have been finding it difficult to determine what constitutes personal data for the purposes of the Data Protection Act 1998.  The Information Commissioner’s Office has issued a technical guidance note and checklist to assist data controllers in identifying personal data especially in circumstances where it is not immediately obvious whether data falls within the DPA definition.

The EAT, in Przybylska v Modus Telecom Ltd, has found that an employer cannot imply a contractual term to extend a probationary period in order to carry out a performance review.
It was held that the employer was only allowed to extend the probationary period if it informed the employee of the extension during the probationary period, even if circumstances made it impractical to carry out a performance review before the end of the probationary period.

Real Life Training

Successful management of the employment relationship is not just about knowing the law. 

The English law relating to adverse possession was thrown into some disarray in 2005, when the European Court of Human Rights ruled that J A Pye (Oxford) Ltd were entitled to compensation from the UK Government because they had “lost” their title to an area of land in Berkshire, following possession of the land for the period of limitation for a period of 12 years by Mr and Mrs Graham, the local farmers who had originally leased the land. This had happened on the basis of English Law prior to the Land Registration Act 2002, the terms of which now make limitation more difficult.

The Corporate Manslaughter and Corporate Homicide Act 2007 (‘the Act’) was given Royal Assent in July this year, 10 years after the Law Commission first recommended that legislation was required in this area.  The majority of its provisions come into effect in April 2008, although those applying to deaths in custody will not come into effect until a later date.  The Act creates a new offence called corporate manslaughter in England, Wales and Northern Ireland, and corporate homicide in Scotland.

Under the current devolution settlement EU policy is reserved to the UK, and to devolved administrations when devolved competences are implicated by EU law.  There are specific inter-governmental procedures set out in a Memorandum of Understanding and a Concordat which includes:

A case before the Administrative Division of the High Court has held that conditions imposed by the Metropolitan Police (“the Met”) against an anti-war protester exceed the limits of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights (“the Convention”), which require conditions restricting those rights to be ‘prescribed by law’.

Having a suitable right of access is an essential part of ownership or use of land and property. It is, however, very common for land or property to be owned without having ownership of all or any of the access route to it, and the law relating to servitudes has developed over the centuries to provide a means for appropriate access rights to be obtained and enjoyed in such circumstances.

The takeover by Spanish company Iberdrola of Scottish Power plc presented unique procedural challenges to Scotland’s Commercial Court in the Court of Session, which were overcome through early constructive engagement with the court.
Court-approved schemes of arrangement under s 425 of the Companies Act 1985 have become the preferred choice for implementing agreed takeovers of public companies in recent years.

Most golf clubs are formed as unincorporated associations.  This is the easiest, cheapest and the most informal way of forming a club.  Upon joining such a club members acquire both rights and liabilities between themselves and the other members.  It is generally the case that the liability of the individual member is limited to his entrance fee (if any) and his subscription.  Responsibility and liability for transactions and activities of the club rests with the club’s management committee.  This is a serious disadvantage of an unincorporated association and members forming part of the man

The Companies Act 2006 is to change the way in which directors’ compensation for loss of office is regulated.  The provisions of section 312 of the Companies Act 1985 are to be replaced with the provisions of section 215 of the Companies Act 2006 with effect from October 2007.  The new provisions may result in changes in the way in which service agreements with executive directors are drafted, as well as changes in the way in which payments made by a company to a retiring director are considered and quantified.

Procuring a written resolution allows private companies to avoid the formalities of holding general meetings.  However, the requirement in the 1985 Act of unanimous consent for the passing of a written resolution and confusion as to the appropriate procedures for the circulation of, and the passing of, written resolutions has prevented some private companies from using written resolutions in place of general meetings.

There is no general common law duty to provide reasoned decisions.  However, a recent Outer House judgment has served as a reminder that the basic principles applicable to the giving of reasons have developed to such an extent that it is now expected in most circumstances.

Following the introduction by the Department of Health (DoH) of a new NHS scheme to encourage GPs to switch patients on to alternative cheaper generic medications when available, the Association of the British Pharmaceutical Industry (ABPI) has declared that it is to enter into a judicial review action against the DoH.

Most golf clubs are formed as unincorporated associations.  This is the easiest, cheapest and the most informal way of forming a club.  Upon joining such a club members acquire both rights and liabilities between themselves and the other members.  It is generally the case that the liability of the individual member is limited to his entrance fee (if any) and his subscription.  Responsibility and liability for transactions and activities of the club rests with the club’s management committee.  This is a serious disadvantage of an unincorporated association and members forming part of the man

Recently, the Court of Appeal reviewed the scope for restrictions which can be placed on employees via their employment contract after they have left their jobs.

The so-called “right to roam” legislation came into force in February 2005, but it is only this month that the Scottish Courts have fully considered the competing interests of access rights and a landowner’s right to privacy and security in the high-profile case of Mrs Ann Gloag v Perth and Kinross Council and The Ramblers’ Association.

A Scotswoman’s home is her castle

Processing sensitive personal data for health and safety reasons and still complying with data protection laws has until recently created uncertainty for employers. However, the Information Commissioner’s Office (ICO), the UK’s independent authority set up under the Data Protection Act 1998 (the Act) to protect personal information, has now published Guidance on the use of Violent Warning Markers outlining how employers can protect their staff in the workplace and still fulfil their obligations under the Act.

It appears as though alcohol is never out of the British news, current worries about binge drinking and the myriad of health and social concerns that accompany it have long proved a discussion point on TV and in both broadsheets and tabloids.  It is then hardly a surprise that a Private Members Bill should be brought forward to regulate the labelling of alcoholic drinks.

The DTI published the Energy White Paper on 23 May 2007. The White Paper consists of 11 chapters on energy security and climate change; saving energy; heat and distributed generation; oil, gas and coal; electricity generation (including renewables, carbon capture and storage for fossil fuels, and nuclear power); research and development; transport; planning; devolved administrations; impact of the measures and the implementation process.

Anyone buying or selling property in Scotland knows (or soon finds out) that most property is affected to some extent by conditions in the title, regulating what can be done with the property.  These burdens in the title can deal with a variety of issues, such as the use to which the property can be put, imposition of an obligation of maintenance or repair of the property, restrictions on building or carrying out alterations to the property and so on.
Enforcement rights

Last month’s edition of Open Door looked at a recent decision from the High Court in England on the remedies available to landlords under insolvency legislation in England against tenants who enter into administration.  Similarly, in the recent case of Marinus Charles Maris and Mrs Roxanne Maria Sloane-Maris v Banchory Squash Racquets Club Limited, the Court of Session in Scotland has looked at the statutory arrangements north of the border in relation to irritancy,

The Government published its consultative draft Climate Change Bill on 13 March 2007.  The deadline for responses is 12 June 2007 with a full Climate Change Bill set to be published in the Autumn. The Legislation is to be centred around 4 pillars: