Knowledge

Public Procurement In Scotland And The Bribery Act 2012

Since the Bribery Act 2010 (the "2010 Act") came into force, there has been discussion and doubt regarding how this legislation affects public procurement. The Public Contracts (Scotland) Regulations 2012 (the "2012 Regulations") in Scotland, which came into force on 1 May, have consolidated the existing legislation on the matter of public contract procurement and update the relevant regulations in this area to reflect the recent changes in the law by ensuring that a number of offences created under the 2010 Act are applied to the public contract procurement process in Scotland.

Moonzie Decision – Market Rent Not Fair Rent

In overturning the Land Court in the Moonzie rent review case (Morrison-Low v Paterson) and confirming that Single Farm Payment is a factor, the Court of Session has also issued a reminder that the statutory basis of agricultural rents is the market rather than fairness.

Managing HMRC's 'Fit And Proper Person Test'

The Finance Act 2010 brought in four new major conditions that charities must adhere to in order to maintain their access to tax reliefs. Read this E-bulletin for more information ....

What will it Cost an Independent Scotland to keep the Pound?

The independence debate that’s been building-up a head of steam in Scotland over the last year has recently spilled-over into the national consciousness south of the border and raises many interesting legal issues over and above important and emotive questions such as whether the denizens of Drumnadrochit will still be able to watch EastEnders in an independent Scotland.

Regeneration: Time To SPRUCE Up

A new regeneration fund has recently been launched in Scotland offering loans to eligible regeneration developments and energy efficiency projects.

National Minimum Wage Rates From October 2012

See attached for new rates.

Lehman Supreme Court Decision - No Winner Takes It All

If you are a depositor with a bank, where do you stand in the event of its insolvency? This question has of course been at the heart of the financial crisis from the day the story of Northern Rock's problems broke in August 2007. As is now well known, if you are the customer of a high street bank your funds are protected by a government guarantee up to a specified limit (currently £85,000). This does not extend to the commercial clients of investment banks however, so what happens there?

A Default or not a Default that is the Question

The recent Glasgow Sheriff Court decision of Sheriff A. F. Deutsch in Northern Rock (Asset Management) plc –v- Millar and Royal Bank of Scotland plc –v- McConnell may be set to send shockwaves into the mortgage industry. An industry which it should be remembered is still reeling after the decision of the Supreme Court in Royal Bank of Scotland plc –v- Wilson.

Common Agricultural Policy (“Cap”) Reform In A Nutshell – New Subsidy Scheme From 2014

The Single Farm Payments will be replaced from 2014 with a new scheme called Basic Payments. With the caveat that these will change as CAP Reform negotiations progress during 2012, here are the key features

Public Entertainment Licences: The New Law

Recent articles in the popular press have underlined the fact that changes are forthcoming in the law with regard to Public Entertainment Licences (PEL’s). However, there seems to be some confusion with regard to both the current legal position in relation to PEL’s and also the proposed new law which is due to take effect in April this year. This article seeks to clarify the law and set the record straight.

Green Investment Bank

The long awaited announcement was made on 8 March that the UK Green Investment Bank will be based in Edinburgh and London.

Are you ready for a Review?

The Office of the Scottish Charity Regulator ("OSCR") has recently published its findings and general advice for the sector drawing on its experience of five years of reviews of individual charities as part of its regulatory obligations.

Fancy A Flutter

As part of its commitment to raising tax revenues during its self-proclaimed period of austerity, the Government has put forward the introduction of a new Machine Games Duty which, if approved, could have significant financial consequences for operators.

EPC - Update

Changes to the current Energy Performance Regulations will be implemented on 6 April 2012.

The Charities References in Documents (Scotland) Amendment Regulations 2011

As of 1 May 2012, following an amendment to the Charities References in Documents (Scotland) Regulations 20-7, charities will be obliged to display certain information on their home web page. See E-bulletin for more information.

The Etridge Guidelines A Useful Reminder

The recent case of Padden v Bevan Ashford Solicitors provides a useful reminder to the House of Lords' guidance in Royal Bank of Scotland v Etridge (No 2). Etridge established a duty on banks and solicitors to ensure that there has been no undue influence where a guarantee has been given by an individual who does not have a commercial relationship with the principle debtor. This most commonly occurs where an individual gives security for their spouse’s debts.

Changing Time for Public Procurement - Will You Benefit?

The European Commission has long placed public procurement reform at the heart of its agenda, believing that it will play a crucial part in attaining its goals of achieving smart, sustainable and inclusive growth over the next decade. Around 18% Europe’s GDP is spent by public authorities on supplies, works and services, and current budgetary constraints mean it is more important than ever that the procurement process works efficiently.

Jurors who Flout the Rules

As Sir Francis Bacon, the Renaissance philosopher once said “knowledge is power”, but this isn’t always the case – particularly for jurors.

A recruitment freeze until 6 April

A recruitment freeze until 6 April may reduce claims for unfair dismissal

Opinion Piece: Agricultural Tenancies - Reforming The Reforms?

Agricultural tenancies are back in the spotlight as the Scottish Parliament considers a bill to implement the second tranche of a package of reforms agreed by the Tenant Farming Forum. The first was passed in March 2011.

What Does 2012 Hold For Employment Law

With the longest month of the year almost over, it's time to look ahead in 2012 at what's in store for employment law. The main changes and proposed developments are detailed in this E-bulletin.

Land Registration (Scotland) Bill

The current system of land registration in Scotland was introduced in 1979 and even the Keeper of The Registers of Scotland herself has acknowledged that the system is no longer “fit for purpose”

Homeless Without A Will

Being forced to sell your home after your wife/husband/civil partner or partner dies is something which nobody wants to contemplate but sadly, it can happen.

Can A Family Business Survive Divorce?

Divorce is difficult for any family. When the family runs a business it can be catastrophic.

Hydropower Company Fined For Unauthorised Abstraction

A hydropower company was fined £8,500 at Fort William Sheriff Court on 6 December for diverting water from a Highland burn without appropriate authorisation.

SCIOs for All

Please read this E-Bulletin for further information on SCIOs.

Queen Of Shops Reviews The High Street Article

Mary Portas’ review of Britain’s troubled high streets

Is it Last Orders for Cheap Alcohol?

In this article, Caroline Treanor examines the liquor licensing laws which came into force on 1st October.

A Charitable Bribe?

Since 1 July 2011, the Bribery Act 2010 has been in force. Alongside the offences of giving and receiving a bribe, the Act introduced a new form of corporate liability under section 7: 'failure of commercial organisations to prevent bribery'. The term "commercial organisation" is perhaps misleading; the organisation does not need to be a profit-making enterprise for the offence to apply. The definition is broadly defined and includes charities and other organisations that are not-for-profit.

Tweeting From Court

Practice Guidance was issued today by Lord Judge, The Lord Chief Justice of England and Wales, which clarifies the use of live, text-based communications in court proceedings in England and Wales which are open to the public and not subject to any reporting restrictions.

Corruption: a measure of risk

The Bribery Act has been in force now for almost 6 months. Despite the ongoing commentary, what do organisations actually know about the risk of corruption in jurisdictions that they or their associated businesses are operting in. For more info - read on ....

A Better Kind Of Divorce

The first working day of the New Year is supposedly the busiest day of the year for divorce lawyers. We in the Tods Murray Family Law Team don’t necessarily believe that this is true but each year there are the same reports in the press of a surge in enquiries about divorce and separation after Christmas.

Being a Witness

Read a PDF booklet, produced by the Scottish Government, which provides information for witnesses in a civil court case in either the Court of Session or the sheriff court.

Our Digital Age Prompts Intellectual Property Changes

This E-bulletin covers the Government's announcement of plans to modernise intellectual property laws which, it estimates, could have a potential benefit to the UK economy of almost £8 billion.

Employment Law Reforms

As part of the recent flurry of activity by the Government in the employment law field, it has published its response to the consultation on "Resolving Workplace Disputes". This E-bulletin details some of the main changes.

Section 63 Article

Scottish Government launched a Consultation Paper into the implementation of Section 63 of the Climate Change (Scotland) Act 2009.

But we're all family: why should we need a shareholders agreement?

Starting a family business can seem like a good idea as a means of providing freedom, independence and immediate control of the workplace ... read on

Guarantees Update

There have been a number of English law and Scots law cases in the last twelve months involving claims under contracts of guarantee and we thought that it would be useful to review some of them and summarise the various arguments that have been put forward either to establish a liability or to deny or limit liability and the approach of the Courts to these arguments.

Top tips for selling your home

Cynthia Burdon, Property sales, shares her top tips for selling your house.

Cohabitation North And South Of The Border

The English landmark ruling on cohabitees’ property rights highlights just how different the Scottish and English legal systems operate, and the difficulties involved when cohabiting couples separate south of the border.

Sick Employees and Accrued Holiday Pay - are they asking for it?

Does an employee who wants to be paid for holiday have to ask for it? That was the issue in the very recent Employment Appeal Tribunal case of Fraser v Southwest London St. George's Mental Health Trust.

Community Interest Companies As Trading Arms

A Community Interest Company ("a CIC") is a limited liability company which has the aim of providing benefit to a community.

Cheap, Cheap Alcohol as Dead as a Dodo?

Fledgling Scottish liquor licensing laws flew into force on 1 October. And some of the new rules are getting punters in a bit of a flap. There’s now a prohibition on the bulk-buying of alcohol; minimum pricing of certain packages containing alcohol, and the “Challenge 25” policy.

Foreign Insolvency and the "Shield" of Local Set-Off

Icelandic ash cloud demonstrated all too well last year, the impact of events in one part of Europe can quickly be felt in another. It should not be surprising then that the impact of insolvency proceedings in one European state should quickly be felt in another.

Its A Goal

IT’S A GOAL!!..... Or is it

Love Thy Good Neighbour Agreement Article

The planning system in scotland has undergone some radical changes by virtue of the Planning etc (Scotland) Act 2006).

The Impact Of The Zero Waste Regulations On Scottish Businesses

New regulations due to come into force in March 2012 will have a huge impact on how Scottish businesses deal with their waste.

One Small Step for the Crown Prosecution Service One Giant Leap for The Bribery Act 2010

A clerk of Redbridge Magistrates Court has become the first person to be convicted under the Bribery Act 2010.

The Local Democracy, Economic Development And Construction Act 2009

10 things you should know about the Local Democracy, Economic Development and Construction Act 2009

Beware of HMRC's Latest Crackdowns

Business Tax Advisor Phil Donegan, wrote an article on HMRC's Latest Crackdowns, which first appeared in the August/September issue of Catering in Scotland Magazine.

More Servitudes in the Pipeline?

Servitude rights come in many shapes and sizes. Whilst lawyers can report on those in writing it is important to understand the nature of implied rights which can be created by use over the passage of time.

The Red Tape Challenge - it is time to have your say on Employment Regulations

The Red Tape Challenge has been launched by the Government - read on for more information on this.

Trouble and Strife

Family Law Associate Siobhan Connelly, contributed to this article on collaborative law, which first appeared in the September issue of Scottish Field Magazine. This article has been reproduced with the kind permission of Scottish Field Magazine.

New Charges Regime

BIS have published their proposed revisions to Part 25 of the Companies Act 2006 (the “Act”). This is the latest in a run of consultation, response and further consultation over the last 18 months (further details of which can be found in previous bulletins on our website http://www.todsmurray.com/knowledge/articles.htm) and while we had been expecting draft regulations it is pleasing to see that instead BIS have published their proposals as a mark up of Part 25 of the Act and are seeking the views of stakeholders. The consultation documentation is online at http://www.bis.gov.uk/Consultations/registration-of-charges?cat=closedwithresponse and the deadline for responses is 30 September. Rather than go through a line by line commentary of the proposed changes this note seeks to summarise the key areas of change and the practical effects thereof.

Implications and use of Social Networks - better the devil you know!

ACAS has published new guidelines to assist the management of potential employment issues arising through the use of online social media in the work place. Read on for more information .....

Removing Assets On Insolvency - the Anti Deprivation Principle

The Supreme Court has spoken in Belmont Park Investments PTY Limited -v- BNY Corporate Trustees Limited and Lehman Brothers Special Financing Inc [2011] UKSC 38 ("Belmont") and has given the anti-deprivation principle the judicial clarification which it deserves. The anti-deprivation principle is a common law principle of insolvency law which has featured heavily in corporate insolvency proceedings in England in recent years.

Changes To Demolition Planning Regulations

Changes to demolition planning regulations

Court Clerk Faces First Prosecution Under Bribery Act 2010 For A £500 Fine

A court clerk at Redbridge Magistrates’ Court is the first person to be prosecuted under the new Bribery Act.

Challenge 25: What Does It Mean For You?

From 1 October this year (2011), all premises selling alcohol (with the exception of remote sale premises) must have an age verification policy in place.

Break or No Break

When is a conditional break option an effective break option?

Marine Energy: What does it mean?

Scarcely a day passes without some news item or government pronouncement on renewable energy. From the expansion of wind farms to the development of hydro-electric schemes, we are becoming acclimatised to our landscapes being shared with the infrastructure required to help Scotland reach its Climate Change targets.

Worker, Employee or Self-Employed - which one is it?

The Supreme Court had to answer this very question in the case of Autoclenz Limited v Belcher and others. Read on to find out more ....

FSA Fines Insurance Company Willis for Inadequate Anti-Bribery Procedures

A warning for all financial services companies as FSA fines insurance brokers for inadequate anti-bribery systems.

Macmillian Publishers to Pay £11.26m plus costs for Bribery

Macmillan Publishers Limited (“Macmillan”) has agreed to pay £11.25m in the fifth civil settlement action by the Serious Fraud Office (“SFO”) for oversees bribery, plus £27,000 for the cost of the SFO investigation. A compliance monitor has also been imposed on Macmillan for 12 months.

The Rising Costs of Energy

On Tuesday 12 July, Energy Secretary, Chris Huhne unveiled the UK Government's White Paper on Electricity Market Reform (EMR), the proposals set out in which are intended to begin passing into law in 2013. Read on for more details ....

Agency Workers

The Agency Workers Regulations are coming into force in October 2011, giving agency workers or "temps" greater rights than they previously had when on assignment. Liability for compliance with the legislation falls on both the hirer and on the agency. Steps must be taken prior to October to ensure compliance. Are you ready? Read on for more details .....

Will News Corp be Prosecuted for Bribery?

The US authorities are reportedly taking advice on the application of the US anti-bribery and corruption law, the Foreign Corrupt Practices Act (FCPA), to the alleged conduct of NotW reporters.

Compulsory Purchase In Scotland... the foundations of improvement

The use of compulsory purchase orders remains controversial; as illustrated recently by use on the high-profile M8 and M74 completions and Beauly-Denny power line.

Be careful what you say

Most employers are aware of the legal duty on them to take reasonable care when providing a reference for an employee or former employee to a subsequent potential employer. Read on for more details .....

Scottish Businesses Invited to Self-Report Bribery

The Lord Advocate has introduced an initiative to encourage businesses operating in Scotland to “self-report” bribery, which coincides with the Bribery Act coming into force on 1 July 2011.

Naming and Shaming: Exposing Bribery through Social Media

It has been reported that Richard Alderman, head of the Serious Fraud Office, recently suggested that people seeking bribes should be named and shamed on web sites such as Twitter.

Building a Sustainable Future

The consultation period on the Scottish Government's "Building a Sustainable Future, Regeneration Discussion Paper" closed recently and we await conclusions from the debate with interest.

Keeping Cookies Under Control

If your business operates a website, you should be aware of the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (“the Regulations”) which came into force on 26 May 2011 . These amend the previous 2003 Regulations by introducing significant new requirements for website providers, most notably in relation to ‘cookies’ and similar technologies. Read on for more information ....

Times Up: The Bribery Act comes into Force Today

The UK Bribery Act comes into force today, 1 July 2011, in terms of a Commencement Order passed by the Justice Secretary, Ken Clarke.

It wisnae me! (well actually, it was ...)

Since 13 December 2010, the concept of vicarious liability has been resurrected in liquor licensing law via the Criminal Justice and Licensing (Scotland) Act 2010. Read on for more info ....

Borders Rail - Carillion Withdraws From Bidding Team

The Borders Rail DBFM Project has suffered a further setback with the news that Carillion has withdrawn from the IMCD consortium.

Doing Nothing Is Not An Option

“Doing nothing is not an option” - these are the words of Derek Watson, Quaestor and Factor of St Andrews University quoted in Metro (3 June) and on BBC News the same day.

Changes To The Agricultural Tenancy Legislation

Changes have been made by the Scottish Government to the Agricultural Holdings (Scotland) Act 1991 and the Agricultural Holdings (Scotland) Act 2003.

Are You Ready for 1 October 2011?

The attached Legal Briefing Note relates to changes/proposed changes in Scottish Liquor Licensing Law. Are you ready for 1 October 2011?

The Social Responsibility Levy: Much Ado About Nothing?

The Alcohol etc. (Scotland) Act 2010 (the 2010 Act), received Royal Assent on 15 December 2010 and will come into force on 1 October of this year. Whilst the Act proposes many wide ranging changes to liquor licensing in Scotland, one of the more controversial proposals is perhaps the Social Responsibility Levy.

The Effect of Urbanisation on Climate Change

The UN-Habitat’s Global Report on Human Settlements 2011 highlights a growing trend in urbanisation, the social process whereby cities grow and societies become more urban. As people living in rural areas migrate to cities, the urban population grows by an estimated 67 million each year. This is predicted to have a massive impact on climate change.

Renewable Heat Incentives

Andrew Duff, Associate, a member of our Planning and Development team, has written an article "The Renewable Heat Incentive – Worth considering?" explaining the key points of the RHI and what it means for householders and the non-domestic sector.

Charge Registration Reform - Further BIS Consultation

In March 2010 the Department for Business Innovation & Skills issued a consultation paper on reforms to the charge registration regime under Part 25 of the Companies Act 2006 and in December 2010 the Government published its response to the responses received to the Initial Consultation.

Budget and Prospectus Rules changes have the potential to give EIS a "Gok Wan" makeover

One of the more interesting changes to arise from the Budget on 23 March was the set of changes to the rules on the Enterprise Investment Scheme ("EIS"). The EIS is to encourage investment in smaller companies which would attract a higher degree of risk, by offering a range of tax reliefs to investors. Read on ....

Receivership of Foreign Based Companies: Scottish Government Acts

In the autumn of last year the Scottish Government issued a consultation paper regarding the scope of receivership in Scotland. We issued an e-bulletin in relation to that consultation published also in 2010 International Corporate Rescue 289 and 2010 SLT (News) 177.

Employment Law Update - April 2011

There are various changes which have come into force in April 2011 and we have outlined some of the highlights in this E-bulletin.

Delivering Sustainable Flood Risk Management

‘Delivering Sustainable Flood Risk Management’ provides statutory guidance to key organisations such as SEPA, local authorities and Scottish Water on fulfilling their responsibilities under the Flood Risk Management (Scotland) Act 2009 and, in particular, provides guidance on the sustainable management of flooding across Scotland.

Water Based Transport to Launch on Loch Lomond

Work is underway to prepare Loch Lomond for the return of water buses to its shores. After a six week trial last year attracted more than 5,000 passengers, the popular Victorian mode of transport is making a comeback.

SCIOs are on the Menu

From 1 April 2011 the Scottish Charitable and Corporated Organisation is now available as a choice of legal entity for those wishing to start up a charity. Although it is not yet available to charities incorporated as companies or industrial and provident societies, any other type of charity may convert to a SCIO. Read on ...

Bribery Act to Come into Force on 1 July 2011

With the Bribery Act coming into force on 1 July 2011, this helpsheet has been prepared to shed a little light on the provisions of the Act and to assist organisations in interpreting and responding to the Act.

Penalty Clauses - Scottish Government opts for extra time in redefining the goalposts

The draft Penalty Clauses (Scotland) Bill published last year is set to remain as just a draft, at least for the immediate future. Read on for more information ......

Top Tips For Getting The Best Deal From Loans And Credit Cards

In this article, Peter Alderdice, banking and finance solicitor at Tods Murray, specialising in consumer credit regulation, offers his top tips on getting the best deal on a credit card or loan

Further Delay in Implementing Anti-Bribery Legislation Confirmed

The Ministry of Justice has today confirmed reports that the implementation of the Bribery Act is to be delayed for a second time. No new date for implementation has been given. Read on ....

VAT Reliefs for Charities

As part of the Coalition Government’s efforts to reduce our national debt, the standard rate of VAT will increase from 17.5% to 20% on 4 January 2011. This VAT hike will be detrimental to the charitable sector in particular. Read on for more information ....

Do Celebrities Influence Green Behaviour

Do Cheryl Cole, David Beckham or even Boris Johnson encourage you to consider climate change issues?

The Fight For Sustainable Fishing

The European Common Fisheries Policy (CFP) has always attracted controversy, especially so in Scotland, but until now it has prompted little in the way of debate outside of the fishing community.

Modest Increases in Energy Efficiency Reported

The Scottish Government’s Scottish House Condition Survey dated 25 November 2010 has revealed round 140,000 households in Scotland have become more energy efficient since 2008.

Transfer of Multiple Appointments

In this article, Robert Dobie and Sarah Skea discuss the recent sheriff court decision in Menzies and Anderson Petitioners, a case in which Tods Murray acted for the Petitioners.

Upcoming Changes to the Consumer Credit Regime

The regulation of consumer credit is an area of considerable complexity, with latest government figures estimating that the annual cost of compliance for businesses exceeds £200 million.

Onshore Hydropower

The Scottish Government have published a Consultation Paper to assess potential impacts of transferring determination of applications for new onshore hydropower schemes generating a capacity of less than 50MW to the Planning Authorities.

The Social Responsibility Levy: A Step Too Far?

As the Social Responsibility Levy makes its way through the Scottish Parliament as part of the Alcohol Etc. (Scotland) Bill, the licensed and catering trades would be well-advised to familiarise themsleves with intracacies of this controversial proposition. In the attached article Caroline Treanor, a member of our Hospitality and Leisure Team, outlines the proposal and highlights its myriad inequities ... This article is reproduced with the kind permission of Catering in Scotland.

Set-off: related agreements, discretion & insolvency

Scottish set-off rules have often been regarded as quite rigid and lacking the flexibility of English equitable set-off – as reflected in the establishment by the Inner House of the Court of Session in Inveresk PLC v Tullis Russell Papermakers Limited in 2009 of a presumption that set-off will not be available outside insolvency between illiquid claims under separate, but related, contracts.

When does the duty to consult collectively kick in?

The Court of Appeal in United States of America v Nolan struggled to give a definitive answer to the question of precisely when the duty to consult collectively arises under the EU Collective Redundancies Directive and the case is lefthanging in the balance while it seeks guidance on this from the European Court of Justice. Read on for further details ....

Flashmobbing and the Law

In this article Thomas Murdock, a member of Tods Murray's IP/IT/Media team, looks at Flashmobbing and the Law. This article was reproduced with the kind permission of The Edinburgh Reporter.

Tough New Tobacco Laws could hit England too

The licensed trade continues to reel at the unremitting stream of new health legislation costing fortunes in compliance. In Scotland, we led the way with the smoking ban and we’re back to tobacco restrictions with the new Tobacco and Primary Medical Services (Scotland) Bill passed last month.

Weir Group Prosecution

On 15 December, 2010 the Weir Group, a Glasgow based engineering company, was fined £3m by the High Court in Edinburgh for bribing officials in Iraq. The Weir Group pled guilty to two charges of paying kickbacks in 2001 to secure contracts for the supply of pumps, in breach of UN sanctions.

Season's Greetings

That time of year is upon us, and for some of us at least “snow is falling, all around us….”. The month of December also hails the advent of the office Christmas Party or, as it is also known, “Black Friday”. A day, and quite possibly evening, of merry-making and a time to reward employees for their hard-work throughout the year. In a year where many employers are still in the throes of an economic recession, the morale-boosting effect of an office Christmas party should not be underplayed.

Powering The Debate

Tods Murray recently hosted a Times Scotland Business Forum considering the future of renewable energy in Scotland and the opportunities that present themselves. Here you can read the views of those involved in the debate at this very exciting time in the industry's development.

PFI to the rescue?

The 2009-10 Hospital Estates and Facilities Statistics for the NHS in England paint an interesting picture. As recently reported on the BBC, some 17% of English NHS estate is deemed to be “not functionally suitable for use”.

Proposed New Charge Registration Regime - Bis Responds to Consultation

After a summer of cogitation last week saw the publication by BIS of the Government Response to their consultation earlier this year on the Registration of Charges created by Companies and Limited Liability Partnerships. Having discussed the consultation in a previous bulletin (BIS Consult on Registration of Charges Regime) we revisit the topic to highlight some of the areas to be reformed.

Tweeting in the Courtroom

Despite the wintry conditions of the last week, the working world hasn’t ground to a halt due to the advanced powers of the internet.

How to Stop Family Firms Boiling Over

In November, Families in Business Partner Susan McFadyen wrote an article on the impact of disputes within family businesses, including useful advice for consideration. First published on the 28 November, this article has been reproduced for our website with the kind permission the Scotland on Sunday.

Takeover Bid Regulations - The Takeover Panel's Review

Last month, the Code Committee of the Takeover Panel (the "Takeover Panel") published their proposed new rules on takeovers. Read on for more information ....

Breaking up is Hard to do: Top 10 Reasons to have a Co-Habitation Agreement

Nowadays more and more couples are opting to live together before getting married, or indeed instead of getting married. Contrary to popular belief, cohabitating couples do not have the same legal protections as married couples do.

Government Guidance on Bribery Not a Get out of Jail Card

It has now been confirmed that the government guidance on the Bribery Act, which is to be issued in the New Year, will not provide businesses with all the answers. In fact, the guidance may pose more questions for businesses than it answers.

Non-Executive Directors - What contribution can they make to a family business

It is not just large, blue-chip companies which appoint non-executive directors ("non-execs") to advise them on critical issues affecting their businesses. On the contrary, there is perhaps as much need for small to medium size family businesses to employ their services ..... click to read on

Crackdown on Corporate Corruption

Barbara Bolton, associate in Tods Murray's Litigation and Dispute Resolution team, contributed to an article by the Insider Magazine in November 2010 which looked at the new anti-bribery laws which come into force in April 2011.

Future Scottish Environmental Legislation Waste Management Licensing

Following a public consultation earlier this year, a new set of waste management licensing regulations is expected to come into force next month. The new regulations will be called the Waste Management Licensing (Scotland) Regulations 2010 and their aim will be to ensure that waste management law is easier to understand. This will be done by consolidating the existing Waste Management Licensing Regulations 1994 and the amendments to it into a single piece of legislation.

New Statistics Record a Minimal Drop in Carbon Emissions

Central to the climate change debate is whether the reduction of a country’s carbon emissions is compatible with its continued economic growth. Recent statistics published in the journal Nature Geoscience highlight a less than predicted fall in carbon emissions in 2009.

Scotland's Renewable Revolution

First Minister Alex Salmond announced a £70 million investment in Scotland’s renewables industry on 2 November 2010. The National Renewables Infrastructure Fund has been established to support the development of port and near-port manufacturing facilities for offshore wind turbines and related developments (including test and demonstration facilities).

Something to Write Home About

Anne Marie Renz, Head of Tax at Tods Murray, wrote this article for Scottish Field in November 2010.

The new equality legislation - a nod to promotion and recruitment on merit

In Britain a mere 12% of Board members in the top 100 firms listed on the stock exchange are women - an unusually low figure in anyone's view. Despite what appears to be a clear under-representation of women in high-level business, our recent WIB Leadership Debate survey revealed that 83% of Scottish Businesswomen who participated in the survey were against the introduction of a "quota" system which would allow the Government to set quotas for the numbers of women in the top ranks of business.

Additional Paternity Rights

Following the introduction of the Additional Paternity Leave Regulations 2010, eligible fathers will be permitted to take a maximum of 26 weeks' Additional Paternity Leave ("APL") - a considerable extension to the previous entitlement of 2 weeks' paternity leave and pay. Read on ....

Employers, say Good-bye to the default retirement age and Hello to objective justification

Earlier this year, the Government announced proposals to phase out the default retirement age (DRA) with effect from 6 April 2011. Assuming that these proposals go ahead, employers will no longer be able to rely on the retirement procedures currently in place under the Employment Equality (Age) Regulations to retire employees aged over 65. Read on ....

Radmacher v Granatino

The Supreme Court have issued their judgment in the eagerly awaited case of Radmacher v Granatino dismissing Mr Granatino's appeal. This is an important decision for the law of England and Wales and brings the treatment of pre-nuptial agreements under English law more in line with that in Scotland where pre-nuptial agreements have always been held to be enforceable.

Old Weather

We hear a lot about how our climate is expected to change in the future, from disappearing coastlines to extreme weather patterns. But what about what has happened to our climate over the last century? A new project called Old Weather hopes to build a picture of how our climate has changed since World War I. The project is looking for volunteers to transcribe historical weather data from the log books of 280 World War I Royal Navy ships spanning from 1905 to 1929 to help scientists test models of the Earth’s climate to make better predictions about future weather.

When is a Blog Host Liable for a Blog Post?

Website blogs have become increasingly popular in recent years, and this trend shows no signs of abating. However, the ease with which information can be posted on websites means that a potentially defamatory statement can effectively be communicated to thousands of people worldwide at just the click of a mouse. Many website hosts may not have fully considered whether they could be held liable for the content of blogs posted on their sites.

Data Protection Act – A Reminder of Possible Penalties for Non Compliance

As highlighted in a previous article on this website, from 6 April 2010, the Information Commissioner has been empowered to issue fines of up to half a million pounds following breaches of the Data Protection Act 1998 (the “DPA”) without the need to take criminal or civil proceedings. Recent comment from the Commissioner in response to a potentially significant breach of the DPA serves as a timely reminder of these significant fining powers and the case itself highlights how easily parties can fall foul of the provisions of the DPA.

When can money be retained

This year a dispute over the Scots law principle of retention in the law of contract went all the way to the Supreme Court, formerly the House of Lords. Read on for details .....

Mccormack V. Hamilton Academical Football Club Limited

The recent decision in McCormack v. Hamilton Academical Football Club Ltd give some guidance to employers when dismissing an employee summarily. An employer must enquire into the employee's conduct and assess whether, depending on the severity of the conduct, the continuance of the contract of employment would be possible.

Will The Proposed Breathing Space For Tenants Suffocate Landlords?

Most landlords will be familiar with the difficulties faced when a tenant goes into administration. Often there will be arrears which the landlord was trying to recover and while the lease will usually allow the landlord to irritate, in the absence of another tenant ready to go into the premises, this may not be the best option and in any event the moratorium in administration prevents irritancy without consent of the administrator or leave of the court.

Restructuring Moratorium: Government Proposals

The Insolvency Service (the “IS”) has published a consultation paper on proposals to introduce a “restructuring moratorium” designed to give breathing space to companies which are in the process of negotiating a compromise or restructuring of their debts.

Half Way Point In Scotland's Carbon Emissions Reduction Target

Scotland has made a good start to cutting its carbon emissions, according to the latest official statistics. Scotland has reduced its carbon emissions by 21.2% from its 1990 levels. This makes meeting Scotland's Climate Change Act target of a 42% reduction by 2020 a realistic possibility. According to Climate Change Minister, Stewart Stevenson, one of the driving forces behind the reduction is the growth of renewable energy sources meeting Scotland's electricity demand. In 2008, almost a quarter of Scotland's electricity demand was from renewable energy.

Insolvency Law In The Electronic World

Recent developments in the law of insolvency have shown a marked shift from a commercial outlook that was dominated by the use of pen and paper to one that now welcomes the use of electronics for communicating and holding information. The result is a more cost efficient system for creditors. However differences between the law in Scotland and England should be considered with care.

Receivership - Scottish Government Consults

Many in Scotland think receivership is no longer important. Most receiverships used to be administrative receiverships over all of a company’s assets and administrative receivership was largely abolished by the Enterprise Act 2002, in favour of administration. Receivership does, however, remain important, both when relating to only part of the assets of a company (“non-administrative receivership”) and in the exceptional situations in which administrative receivership remains competent following the Enterprise Act.

Net Yourself A Baby

Surrogacy has been in the news lately, and arrangements are becoming more common - with risks to all concerned, as Naomi Pryde, solicitor in Tods Murray's litigation team, describes. This article first appeared in The Journal.

Facebook Friend or Foe

In this article Naomi Pryde, solicitor in Tods Murray's litigation team, reports on the recent decision by Facebook to amend its privacy controls which highlighted the ubiquity of the site in working life as well as private time. This article first appeared in The Firm Magazine.

Crunch Time for PFI

On 27 July 2010, the National Audit Office (NAO) issued its report on the implications of the credit crisis for both existing and future PFI projects. “Financing PFI Projects in the credit crisis and the Treasury’s response” highlights the challenges the Treasury faced as the crisis took hold in the autumn of 2008, explains the Treasury’s response and outlines the Treasury’s proposals for the financing of future projects.

Employee Tribunals: The Tables are Turning

In this article Chris Leitch, member of Tods Murray's Employment team, looks at employee tribunals and how employers can potentially avoid liability for costs when workers challenge them on the grounds of unfair dismissal. This article was reproduced with the kind permission of Catering in Scotland Magazine.

How entire are entire agreement clauses in contracts?

Many contracts contain a clause to the effect that the contract is the entire agreement of the parties in relation to a particular subject and as such supersedes all prior agreements, negotiations and discussions between the contracting parties. There has been some uncertainty about what these entire agreement clauses actually achieve. This article considers recent case law which has highlighted the limitations of entire agreement clauses in a situation where there is an attempt to rectify the terms of a signed contract.

Changes Proposed to the Prospectus Rules

When any company is looking to raise funds by offering its shares, one of the first questions which the company and its advisers need to ask is whether or not a prospectus is required under the Prospectus Rules. Read on ....

Is over 65 really the end of the world?

The Government announcement that the default retirement age (DRA) of 65 is to be scrapped was hardly a surprise. It was agreed Coalition policy and had also been in the Labour Party's election manifesto. Moreover, although Age Concern lost its legal challenge to the DRA last year, the judgment raised questions as to whether the DRA could survive. Read on .....

The Emergency Budget, One Month On - Encouraging Business or Endangering Recovery?

As the dust begins to settle and the detail of the new tax measures becomes clearer, what does the road ahead look like for businesses? Read on .....

TUPE Transfers - A Dynamic or Static Approach, or Just Somewhere in Between

If you have dealt with TUPE transfers, you will be familiar with the basic principle that the contractual terms and conditions of the transferred workforce continue in force under the new employer, following the transfer. The new employer's ability to change these is limited, but what about changes resulting from the actions of an outside party? There have been two recent decisions in this area.

Whose Supply Is It Anyway? - The Puzzle of PFI and the CRC Energy Efficiency Scheme

As part of the UK government’s commitment to reducing greenhouse gas emissions by 2050, the CRC Energy Efficiency Scheme Order (the “Order”) came into force on 1 April 2010, establishing a compulsory carbon emissions cap and trade scheme (the "Scheme”), which applies to both public and private sector organisations and aims to incentivise energy efficiency.

Penalty Clauses – Scottish Parliament to change law?

The Scottish Government is consulting on a draft Bill which will change the Scots law of penalty clauses in order to address concerns with the current law raised by the Scottish Law Commission in its 1999 report on the subject (No.171). The consultation closes on 8 September 2010.

Scottish Association With Legal Personality ("SALP")

The unincorporated association is a form of business model often used for clubs, voluntary organisations and other associations.

Bribery Act 2010: Time to Pay?

In the business world of today, corporate hospitality and business development are common place forms of conducting and facilitating business transactions.

Passing the Test of Shari'a Compliance

The recent case of The Invesstment Daer Co KSCC v Blom Developments Bank Sal [2009 EWHC 3545] in the English High Court has highlighted the unforeseen problems which may arise from the interaction of Shari'a law and the local law governing an Islamic finance contract.

Third Sector Forum Government Support

Following on from our successful Third Sector Forum event at the beginning of June, we received feedback from various clients and contacts to the effect that they had not realised just how much government support was available to the third sector. Read on .....

Franchisors Beware!

Negotiations in relation to franchise arrangements can often seem rather one sided. The franchisor is usually in a strong negotiating position and will have a detailed knowledge of the franchised business operations and the relevant sector.

The Emergency Budget Anouncement: Employment Implications

Read on for employment implications of the emergency budget announcement.

Any Questions?

Are there many places in the country where there is still a level of ignorance of the Gambling Act?

The Emergency Budget – Key Tax Issues for Private Clients

The Chancellor, George Osborne, delivered his first budget on Tuesday and ended weeks of speculation about the tax increases that will be needed to deal with the budget deficit. A brief summary of the key tax measures as they affect private clients is set out in this article.

Key Tax Changes in the Emergency Budget

The Chancellor, George Osborne, delivered his first budget on Tuesday and ended weeks of speculation about the tax increases that will be needed to deal with the budget deficit.

Gaps in Gambling Act Knowledge in Scotland

Over two years after the Gambling Act 2005 came into force, there are still some alarming knowledge gaps north of the border both in terms of operation and administration.

Legal Remedies for Tackling Antisocial Behaviour

It is an unfortunate fact of life that antisocial behaviour plagues communities across Scotland. The extent of the problem of course varies from place to place and indeed from time to time, although a rise in incidents of antisocial behaviour is often seen over the summer months. What then can a Registered Social Landlord (RSL) do when faced with the problem of anti-social behaviour within their own area?

Retail Surgery

What is the new night-time food licence that is due to come into force in Scotland all about - and who will it apply to?

Act Called Time on Staff Drinks

Denying bartenders the right to relax with a pint after work is a step too far, says Tods Murray

BIS Consult On Registration Of Charges Regime

As anticipated during their passage through Parliament four years ago, and six months after they came into effect, the provisions under Part 25 of the Companies Act 2006 (“Part 25”) for the registration of charges created by companies are being subjected to radical review.

Have your Cake and Eat It!

In June, our Family Law Team sponsored a feature in CA Magazine about Family Businesses, which discusses how the factors that make them strong, can also make them vulnerable in the event of a marital breakdown or family fallout.

Coalition to consider Capital Changes?

On Monday 17 May, the Coalition Government announced an emergency Budget date of Tuesday 22 June 2010.

Politicians are just Chasing Big-Policy Headlines

Pity the poor, hardworking bartender north of the border, who until September last year could legally have a staff drink after hours at the end of a busy shift.

Best Value?

New Regulations effective from 1st June 2010 will govern local authority disposals of land for consideration which represents less than "best value".

Bye Bye Beer Tie

In this article Katie Corrigan, member of Tods Murray's Hospitality & Leisure team, looks at the Beer Tie - the practice of pubcos requiring their tennants to buy beer and other profucts from them in return for lower rent and a degree of business support. This article was reproduced with the kind permission of Catering in Scotland Magazine.

Building Control Letters of Comfort

Building control letters of comfort are a complex subject, but one which can have serious knock-on effects on negotiations for sale of a property. In this article, Alistair Kennedy takes a look at the issue, examines relevant case law and flags up some of the potential pitfalls to be aware of.

Disciplinary Proceedings: Time is not always of the essence

Every so often, we are asked by an employer what to do where an employee is facing disciplinary proceedings and at the same time is being investigated by the police.

Asset Protection

Gordon Cunningham, Partner at Tods Murray, wrote an article on pre-nuptial agreements, post-nuptial agreements and stepping on to the property ladder, for Scottish Field in May 2010.

New Corporate Governance Guidance and Principles for Unlisted Companies in Europe

On 8 April 2010, the European Confederation of Directors' Association ("ecoDa") published the "Corporate Governance Guidance and Principles for Unlisted Companies in Europe". Read on .....

Election Fever 2010: the Employment Perspective

Britain is in the throes of election fever and with 6 May almost here, decision time is upon us. Political parties have something to say on every topic - employment issues are no exception.

Profile Law

In this article, as first seen in Business Women Scotland Magazine Issue 4, Tods Murray Corporate Partner Susan McFadyen, is profiled and also takes part in the "Ask The Expert" Q&A, in which she answers questions and discusses the legal structures available to businesses starting up or restructuring their operations.

Cross Border Insolvency - 2 Recent Decisions

Two recent cases in the English courts have further clarified the court's interpretation of a company's "centre of main interests" (COMI) in cross border insolvencies.

Take Notice

Notice provisions in contracts matter. That opening gambit could be blunted further by simply stating that contracts matter, but it is scarcely worth making the wider statement, given that everyone involved in business knows this lesson well. Notice provisions, however, tend to get glossed over in negotiations.

The Bribery Act 2010

The Bribery Bill received Royal Assent on 8th April, and is now an Act of Parliament. However its provisions are not yet in force.

Construction of Contracts: Priority of Documents

Construction solicitor Alistair Kennedy examines the issue of priority of documentation in construction contracts in this article - how much can you rely on your contract to accurately reflect what the parties want if the parties have different ideas on what the contract says, and what can you do to avoid problems down the road?

Public Services Reform (Scotland) Bill

The Public Services Reform (Scotland) Bill was passed by Parliament on the 25th March 2010. The Bill, which is expected to become law in 2011, contains some important changes to charity law in Scotland. Read on for more info .....

A Maximum £500,000 Penalty for Data Protection Breaches

The Data Protection (Monetary Penalties) Order 2010 and The Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010 came into force on the 6th April 2010.

Letters of Intent ("LoI")

The construction industry and its employers are all too familiar with the loud cry from lawyers, along the lines of - “Don’t use Letters of Intent – uncertainty and doom will ensue”.

Adjudication - The Developing Rules

For 12 years we have had adjudication in the British construction industry and participants have become comfortable with it but things are about to change.

Risks, Rewards and Boards

The financial crisis saw major institutions come tumbling down. Now, as Granger Brash explains, reforms to corporate governance in the UK are aimed at ensuring this doesn’t happen again

Listed Companies and Institutional Shareholders Beware

This year has seen further consultations and proposed changes to corporate governance in the UK. Read on for more information .....

No Termination Without Consultation

An employer who is proposing to make 20 or more employees redundant at one establishment within a 90 day period has to go through a collective consultation process. Read on for more details .....

Perils and Pitfalls of Trying to Maintain the Family Business

On 11th March 2010, Lucy Metcalf, Senior Associate in our Family Law team, commented in the Scotsman's Family Business Feature, in which she discusses the issues a marital break-up can cause a family business and how to limit the damages.

Professional Viewpoint

On 2nd February 2010, Private Client Partner Gordon Cunningahm, wrote a "Professional Viewpoint" for The Times, in which he discusses the issues connected to buying a property for your children.

Family Matters can cause any Firm to Founder

On September 6th 2009, Corporate Partner Malcolm Holmes, wrote an article for the Soctland on Sunday entitled "Family Matters can cause any Firm to Founder" in which he explains why dynastic vision is no subsitute for planning ahead.

Virtual Closings: A Virtual Reality?

The publication on 16 February by the Law Society of England and Wales of their practice note on the execution of documents at virtual signings and closings provides an opportunity to remind ourselves of one of the basic legal differences between Scots and English law which can impact on the practicalities of closing a cross-border transaction.

£20million reasons to check your PPL/PRS

Many businesses will be familiar with the organisations Phonographic Performance Limited (PPL) and Performing Rights Society (PRS) because of the extremely high "licence" fees payable to them in order to allow the public performance of copyrighted material such as background music. The fees increased by around 400% a few years ago and many businesses questioned the need for the fees to be so high.

Kinks Still to be Ironed out in Companies House Forms

With effect from 1 October 2009, Companies House has replaced its previous forms with new forms which take into account the changes introduced by the Companies Act 2006.

Doing What it Says on the Tin

Doing what it says on the tin: a unilateral power in the contract of employment to amend employee's terms and conditions means just that.

Supreme Court - Supremely Sensible?

Supreme Court Judgement in Sigma Finance Corporation (in administrative receivership) and In Re The Insolvency Act 1986 (Conjoined Appeals)

Planning Agreements - New Scottish Government Guidance

On 4 February the Scottish Government published new guidance on use of Planning Agreements in Scotland in the form of Circular 1/2010.

Time To Train

From 6 April 2010, 11 million employees across Great Britain will have a new right to request time off work to undertake study or training.

Wind Energy: Filling in the gaps

Richard Leslie, Seinor Associate at Tods Murray, wrote this article for Scottish Field in February 2010. To read his article, which has been reproduced with the kind permission of Scottish Field magazine, please click on the link below.

Freedom of Information

Are you prepared for designation of your organisation as a "Scottish Public Authority"? A note on some Key Issues for Companies arising out of the Consultations on the extension of the Freedom of Information (Scotland) Act 2002 and a revised Code of Practice for Scottish Public Authorities.

Relaxation of Planning Laws in the Promotion of Green Energy

The Scottish Government has unveiled plans to enable homeowners to power their own homes with various “green technologies”, but without first obtaining planning permission.

Future of Waste Disposal

Targets to cut the amount of municipal waste sent to landfill sites are in danger of being missed, a report by Audit Scotland has revealed.

Death and Divorce: Cautionary Tales

The following cases underline the need to think about what will happen to your family after your death and to keep your affairs updated if your circumstances change.

Provision of Services Regulations 2009 - Are You Compliant?

Businesses engaged in the service sector should be aware of the Provision of Services Regulations 2009, which came into force on 28th December 2009. Many businesses may have overlooked the introduction of these new regulations, given that they were introduced in the middle of the festive period.

Suppliers Beware

Most businesses are only too aware of the need to have a robust set of terms and conditions. However, a recent Aberdeen Sheriff Court decision serves as a timely reminder that the law (at both common law and under statute) can imply terms into contracts with customers.

Rent in Trading Administrations

The insolvency of a tenant raises a number of issues for Landlords, not least of which is the Landlord’s rights against an administrator of the tenant, and what is to happen if the administrator continues to occupy the leased premises.

Enviroco Limited V Farstad Supply

A recent Court of Appeal decision has highlighted some potentially unintended consequences of the statutory provisions in the Companies Act defining a “subsidiary”.

Dress Codes - Going for the Chop

Periodically we are asked whether it is discriminatory to apply different dress requirements as between male and female employees.

Charity Licensing Plans Scrapped

Scottish Government scrap plans.

Family all the Poorer where there's No Will

Agnes Mallon, Senior Associate in Tods Murray's Private Client department, wrote an article on the importance of writing a Will, for the Scotland on Sunday on the 6th December.

Bribery: The Long Arm of the New Law

The Bribery Bill is expected to become law in early 2010. Having originally been intended for England and Wales, it is now likely it will also apply in Scotland. Individuals prosecuted for bribery under the new law will face up to ten years imprisonment, while companies will face an unlimited fine. Implementation of the new law could have far reaching implications for both public and private organisations, who would be well advised to take steps now to ensure compliance.

Sustainable Procurement and Scottish Public Bodies

The Scottish Government has recently issued a document entitled the Sustainable Procurement Action Plan, which is designed to offer public sector bodies advice and assistance on how best they can add a sustainability element to their procurement processes.

The Missing Piece of the Puzzle - Piecing together PFI Contracts

2009 has been a year of tough negotiating as far as PFI contracts are concerned. Of course, negotiating these contracts has always been about allocating risk but, in the current climate, parties are becoming far more sensitive to their exposure than the more relaxed approach which had become the norm in more affluent times.

The Challenge of Providing Care for the Elderly

Providing proper care for the elderly is as critical to society as dealing with climate change.

The Financial Collateral Arrangements Regulations

Taking security over certain types of financial assets was intended to be simplified by the Financial Collateral Arrangements (No.2) Regulations 2003.

PFI, Construction Contracts and Pay-When-Paid Clauses

The provisions of section 113 of the Housing Grants, Construction and Regeneration Act 1996 (the “HGCRA”) that outlawed pay-when-paid provisions in construction contracts (except on insolvency of a relevant third party) will be strengthened when the relevant part of the Local Democracy, Economic Development and Construction Act 2009 comes into force, probably some time in late 2010 or perhaps 2011.

One Step Closer to Bridging the Gender Pay Gap

The Court of Appeal has ruled in Wilson v. Health and Safety Executive that service-related pay structures must be objectively justified or they will fall foul of the Equal Pay legislation.

Is it worth the paper it's written on?

The recent Court of Appeal case University of Plymouth v European Language Centre Limited is a useful reminder of the dangers of attempting to conclude a contract by telephone or an exchange of emails

No set-off between related agreements

In this article published in the October 2009 edition of Corporate Rescue and Insolvency, Hamish Patrick discusses the decision of the Inner House of the Court of Session (the Scottish civil appeal court) in Inveresk PLC v Tullis Russell Papermakers Limited [2009] CSIH 56, which has clarified that obligations arising under separate, but related, agreements will be presumed not to be mutual for the purposes of set-off.

Wealth Management: Keeping it in the Family

Gordon Cunningham, Head of the Families in Business team at Tods Murray, wrote this article for Scottish Field in December 2009. Read his article reproduced with the kind permission of Scottish Field Magazine.

The Criminal Justice and Licensing (Scotland) Bill - A Potential Threat to Fundraising

Currently, a "market operator's" licence must be obtained for any event where goods are sold to the public. Charities, community groups and religious organisations are exempt from licensing. However, the Criminal Justice and Licensing (Scotland) Bill presently being considered by the Scottish Parliament seeks to remove this exemption.

Important OSCR Consultation

The Office of the Scottish Charity Regulator has issued a consultation document on what it calls "Integrated Reporting". The consultation is open until 29 December 2009 and the consultation document is available online.

Interpretation of Contracts: A Review of Three Recent Decisions

The judicial interpretation of contracts is in many senses the ultimate test of draftsmanship. If a contract withstands scrutiny by a judge, it is a seal of approval indicating that the draftsman has discharged his duty competently. However, the fact that a dispute over the terms of a contract has reached the doors of the court can often be a sign that something has gone awry in the drafting.

Agreeing Rescues with Creditors

In this article, as published in the October 2009 edition of the Journal of the Law Society of Scotland, Alistair Burrow and Hamish Patrick, members of Tods Murray's Recovery and Insolvency team discuss how recent cases on company voluntary arrangements show them often to have advantages in insolvencies over schemes of arrangement.

Weighing Up New Measures

Tods Murray LLP, reckons there’s some way to go before two-thirds of a pint and 125ml of wine become the norm in the trade.

October Employment Law Changes

1st October is one of the two days each year when statutory changes to employment law are generally brought in by the Government. This time, there is less to get excited about than usual.

Freedom of Information, or Not?

The Freedom of Information (Scotland) Act 2002 is an important piece of legislation, affording members of the public a means to access information held by Scottish public authorities. The Court of Session recently issued a judgment which found in favour of two councils who had been subject to a number of information requests. The decision may also be instructive to those considering the English equivalent Freedom of Information Act 2000.

The Licensing Act's Impact has been Immense

After some eight years in the pipeline the Licensing (Scotland) Act 2005 came into force on September 1 and you’d be lucky if any member of the public could tell the difference. But the impact on publicans north of the border has been immense.

Will the Default Retirement Age Survive?

The decision by the English High Court rejecting Age Concern's attempt to have the default retirement age of 65 overturned came as no real surprise. Following the European Court's decision earlier this year on the questions which had been referred to it in relation to the case, that always seemed the likely outcome.

Companies Act 2006 - 1st October 2009 Implementation

The last remaining provisions of the Companies Act 2006 will finally come into force today, 1 October 2009. This marks the end of a staggered process of implementation which commenced in January 2007.

Compromise Agreements

Compromise Agreements are a familiar means of settling claims or potential claims following termination of employment.

A Guide to Benevolent Fundraising in Scotland

The past few years have seen a significant change in the regulation of charities in Scotland with the enactment of the Charities and Trustee Investment (Scotland) Act 2005 (“the Charities Act”) and the inevitable raft of secondary legislation which accompanies any such piece of major legislation. The latest statutory instrument to follow in the wake of the Charities Act is the Charities and Benevolent Fundraising (Scotland) Regulations 2009 (“the Fundraising Regulations”), which came into force on 1 July 2009.

Companies Act 2006: Impact on Memorandum & Articles of Association

The last remaining provisions of the Companies Act 2006 (the "2006 Act") will finally come into force on 1 October 2009. From 1 October 2009, the role and content of a company's Memorandum and Articles of Association will change considerably. The changes being introduced will affect both existing companies and companies which are formed after 1 October 2009.

Catering for the Disabled

Among the many issues a licensee has to deal with when making any changes to their premises, or opening a new one, is disabled access. Here, Tods Murray assesses the legal rights and wrongs.

Calling Time on Scotland's Pubs

The stories of thousands of licensed premises closing their doors throughout Scotland are, unfortunately, highly accurate, and it’s not merely attributable to the economic downturn. In just a couple of weeks, it is anticipated that Scotland will lose some 20% of its existing licensed premises (around 3,800 in all), when the new Licensing (Scotland) Act 2005 comes into force.

New UK Charge Registration Regime for Overseas Companies

The new UK registration regimes for charges created by companies come into effect on 1 October 2009.

Court Actions Raised By Shareholders on Behalf of Companies

Tods Murray acted for the Petitioner in the first case of a shareholder bringing a court action on behalf of a company under the 2006 Companies Act provisions for derivative actions, the Petition of Alexander Marshall Wishart.

Protecting Directors' and Company Secretaries' Residential Addresses from Disclosure

The Companies Act 2006 contains new provisions designed to protect the confidentiality of the residential addresses of directors and company secretaries. The new regime, which will come into force on 1 October 2009, represents a significant departure from the current position under the Companies Act 1985.

Every Silver Lining has a Cloud

Furnished Holiday Lettings (FHLs) have been an established tax planning vehicle for a number of years. They benefit from favourable tax treatment which allows their owners to shelter other earnings from income tax (IT), reduce or defer their capital gains tax (CGT) bill on disposal and ease the inheritance tax (IHT) burden on the owner’s estate when the property is gifted or transferred on death.

No Way Back

Where an employment tribunal finds that an employee has been unfairly dismissed, the first thing it has to do is ask the employee whether they would like to be re-employed. If the employee says that they would, the tribunal has to consider whether to make an order for reinstatement or re-engagement against the employer. It is only where no such order is made that the tribunal will make an award of compensation for unfair dismissal. And yet only about 3% of successful unfair dismissal claims result in an order for re-employment.

"Likely" to be Disabled

To qualify for protection under the Disability Discrimination Act 1995, a person has to show they have a disability. The meaning of "disability" is therefore crucial.

Holiday Pay Claims Going Back Years

As the recession continues to hit and at a time when BA has asked its staff to work for no pay, many employers will be reeling from the House of Lords judgment in HM Revenue and Customs v. Stringer and Others.

An Interesting Decision On Section 459 Of The Companies Act 1985

There was recently reported the decision of Lord Glennie on a Petition brought under Section 459 of the Companies Act 1985 (the provisions of which are now embodied in Section 994 of the Companies Act 2006, which came into force on 1 October 2007).

Trade Friend or Alco-Cop?

Tods Murray LLP explores the role of licensing standards officers in the 2005 Act.

A Double Recovery

The recent decision of the Employment Appeal Tribunal in Stuart Peters Limited v Bell confirmed that an employee who has been unfairly constructively dismissed is entitled to be paid for their full contractual notice period, even though they have undertaken paid work for a new employer during that period.

Keeping an Eye on Things

With every late night premises now required to have CCTV fitted under the Licensing Conditions (Late Opening) (Scotland) Regulation 2007, Tods Murray argues that CCTV could actually be seen by some as illegal.

Generating an Interest in Tax

Anne Marie Renz, Head of Tax at Tods Murray, wrote this article for Scottish Field in May 2009.

Changes to Provisions Regulating Share Capital and Acquisition by a Company of its Own Shares

Companies Act 2006 - Changes to Provisions Regulating Share Capital and Acquisition by a Company of its Own Shares

Hospitality Operators Alerted to New "Tipping" Laws

From October 2009, further new employment laws regarding the national minimum wage will come into affect. Perhaps the most significant of these for the hospitality, leisure and licensed trade is the new rules regarding the treatment of “tips”. This has always been an area of some dispute and I am encouraged to see the Government taking steps to resolve this.

Insider Dealing

Article re recent story in the news about the Financial Services Authority securing its first jail term for insider dealing under the Criminal Justice Act 1993.

Community Interest Companies - An Overview

A Community Interest Company, introduced by an Act of Parliament in 2004 and regulated by the CIC Regular, is a limited liability company created for social enterprises that intend to use their profits and assets for the benefit of a community and not for the direct benefit of shareholders and directors.

Succession Planning - Keeping it in the Family?

It’s important for all family businesses to plan for succession in its widest sense. What’s to happen to the business when the current owner retires? When is this likely to happen? And what preparation does the business and its management need in the meantime, to allow the transition to occur with minimum disruption to the business? These are complex issues, and ones that are better addressed sooner rather than later.

Reform of Partnership Law

Both the Partnership Act 1890 and the Limited Partnerships Act 1907 have “had their telegram from the Queen"; but they soldier on, and it's hard to think of other legislation more than 100 years old which still governs such a wide variety of commercial situations dealt with by lawyers on a daily basis.

Shareholder Disputes

Barbara Bolton, Senior Solicitor in Tods Murray's Commercial Litigation team, wrote an article for the Journal in March 2009 which looked at the practical difficulties under Scottish procedure for bringing company derivative actions, and the court's approach in the first request for leave.

Review of Banking Cases and Developments in 2008

Tony Watson and Rod MacLeod held a presentation in January looking at various cases and developments that occurred in 2008.

Time for an Ad Break?

In the wake of the recent debates between The Portman Group and Scottish beer producers Orkney Brewers and BrewDog, and a new set of guidelines for alcohol advertising, Tods Murray LLP looks at the relationship between alcohol and the way it is promoted.

Increased Penalties for Late Filing

Companies should be aware that the penalties levied for the late filing of annual accounts have been increased sharply, with effect from 1 February 2009.

SNP Publish Controversial New Alcohol Proposals

The Scottish Government’s new package of measures: “Changing Scotland’s Relationship with Alcohol: A Framework for Action”, designed to address the problems arising from over consumption of alcohol in Scotland, was released on 2 March 2009. It is a broad document with suggestions for change across a spectrum of areas from licensing laws to mental health support and education. This article highlights the proposed changes in relation to licensing laws.

Formation of a Community Interest Company

This briefing note sets out details of the steps required to incorporate a new CIC and also the steps required to convert an existing company to a CIC.

Take a Gamble on Bigger Profits

It's looking like 2009 could be a challenging year for the hospitality and leisure industry. Aside from the economic downturn and general trading difficulties, the sector has experienced a massive increase in licensing fees as we move towards the Licensing (Scotland) Act 2005.

Packed and Ready

This article which appeared in The Journal of the Law Society of Scotland regarding Pre-packs”, meaning sales out of an insolvency process which have largely been agreed (at least in principle) before a formal insolvency appointment, are loaded with controversy.

Unincorporated Associations

Unincorporated Associations - Personality required?

Planning for a Better Future

Gordon Cunningham, Partner at Tods Murray, wrote this article for Scottish Field in February 2009.

The Code for Leasing Business Premises - The Poll Results

In an article by Caroline James, Head of Tods Murray’s English Property Law team, she posed the question: Is the Code for Leasing Business Premises 2007 relevant to Scotland? Caroline also ran an online poll, via our website, to capture opinion and find out if this was something which was sought for Scotland. The results of this poll are shown below:

Business Premises Renovation Allowance

Anne Marie Renz, Head of Business Tax at Tods Murray, highlights the conditions and tax benefits related to Business Premises Renovation Allowance.

Entrepreneurs' Relief – Winners and Losers

Few can have failed to notice the introduction of the new capital gains tax regime in April this year, given the general furore over the proposed changes and the press coverage this generated. Out went business asset taper relief (BATR), indexation allowance and the linking of the capital gains tax rate to the marginal rate of income tax. In came the flat rate of 18% and – eventually – a new entrepreneurs’ relief (ER).

SDLT about to really kick in

Anne Marie Renz, Head of Business Tax at Tods Murray, wrote an article for CompropScotland in October.

Changes to the Child Support Regime

The Child Support Agency, widely regarded as one of the worst and most inefficient government agencies – a clerical, administrative and legal nightmare – is going to be scrapped. What the CSA does is to assess child support or maintenance payable by what it calls “the non-resident parent” or “NRP” and then recover, or at least attempt to recover, the maintenance from the NRP and then finally administer the payments to “the parent with care” or “PWC”. That’s the theory anyway.

Wrong Footed

Malcolm Holmes, partner in Tods Murray's Corporate team, wrote an article for CA Magazine in January 2009 which looked at the care needed to avoid "wrongful trading".

Process Queries

This article which appeared in The Journal of the Law Society of Scotland discusses recent changes to Bankruptcy of individuals in Scotland which same into effect on 1 April 2008. This appeared in The Journal in October 2008.

Goal to Leeds

This article which appeared in The Journal of the Law Society of Scotland illustrates how an insolvent football club has helped clarify the rules on administrators' liability for payments under contracts of employment.

Preferential treatment?

This article which appeared in The Journal of the Law Society of Scotland illustrates how the English courts have been grappling with the question whether a financial award on divorce amounts to an unfair preference in bankruptcy.

More Equal than Others?

This article which appeared in The Journal of the Law Society of Scotland illustrates how two English cases appear to settle the question of which creditors are entitled to share under the new "prescribed part" provisions.

Testing Insolvency

This article which appeared in The Journal of the Law Society of Scotland is a discussion of the Cheyne Finance decision in England on when a company is to be treated as unable to pay its debts, which may have served only to muddy the waters.

Energy Performance Certificate Bulletin

Whatever your thoughts on Energy Performance Certificates (EPCs), the EU Energy Performance of Buildings Directive (the Directive) will now require UK commercial property owners to provide these for existing and new buildings.

Reserving Judgment

It is common practice for residential developers selling properties in a new development to have purchasers complete a reservation form and pay a reservation fee prior to issuing a formal offer to sell the property.

The Code for Leasing Business Premises 2007 - Is it relevant to Scotland?

It is almost a year since the introduction of the 2007 Code for Leasing Business Premises in England and Wales.

All Change

Martin Thurston Smith, head of Tods Murray's Employment and Pensions team and partner in Tods Murray's Corporate team, wrote an article for CA Magazine in September 2008 which explored the legal issues on how the law on employment disputes is about to take a new direction to make life easier for employers and employees. Read his article reproduced with the kind permission of CA Magazine.

Duty Deadline

Alistair Burrow, partner in Tods Murray's Corporate team, wrote an article for CA Magazine in July 2008 which looked at the provisions of the Companies Act 2006 affecting directors when they come into force in October.

Damaging Delay

David Dunsire, head of Tods Murray's Corporate team, wrote an article for CA Magazine in January 2008 which looked at how businesses would be affected as implementation of some of the provisions in the Companies Act 2006 is postponed.

New Option for Separating Couples

Edinburgh based Core Solutions Group has been the leading provider of mediation services in commercial disputes for some years. It has recently announced a move into the field of mediation in high value family cases, with the appointment of Morag Wise QC as one of its panel of mediators. Morag is recognised as one of the leading specialist advocates in family and matrimonial matters.

The New Licensing (S) Act 2005

2005 was a landmark year as far as liquor licensing in the UK is concerned. In England the much heralded “all day drinking laws” came into force on 1 December and in Scotland the Licensing (Scotland) Bill was passed on 16 November 2005. We have some time to wait before this new law comes into force as the date for coming into effect has been pushed back to 2009.

Checklist for applying for Operating Plan under the Licensing (Scotland) Act 2005

Checklist for Compliance with Licensing Conditions

Checklist for Layout Plans

SIA Licensing is on the Doorstep

An overview of the imminent implementation of door supervisor licensing in Scotland.

Pub Games Reborn

The Gambling Act 2005 has many ramifications for licensees of pubs and clubs who offer gaming facilities.

Poker in Pubs: DCMS Shows its Cards

Tods Murray looks at the growing popularity of poker, problems presented by the current law and DCMS plans to relax controls on the game in alcohol-licensed premises.

Alcohol Disorder Zones – A Lesson from England

With the controversy over the Scottish Governments new strategic approach on alcohol including a “social responsibilty fee”, we look at similar developments in England & Wales.

"Fit and Proper" test back on the cards?

Tods Murray LLP analyse proposals in the new Criminal Justice and Licensing Bill, including a re-introduction of the “fit and proper” test.

Licensing for Commercial Conveyancers

A brief guide to the impact of the Licensing (Scotland) Act 2005 for commercial property transactions.

Stress Claims and Employees

Stress cases historically have been fraught with problems for employees raising them.

At Home with Tax

Anne Marie Renz, Head of Business Tax at Tods Murray, wrote this article for Scottish Field in December 2008.

Small Scale Hydro Electric Schemes

Richard Leslie, Senior Associate in Tods Murray's Rural Property and Business Team, wrote this article for Scottish Field in September 2008.

Satellite Row Remains Live

Tods Murray look at the latest legal position surrounding live football broadcasts in pubs. This article first appeared in the October 2008 edition of the Scottish Licensed Trade News.

Wrongful Trading

During these difficult economic times, directors must heighten their awareness of their duties and also ensure that they keep themselves appraised of the company's financial state and performance. Failure to do so could potentially lead to the company wrongfully trading.

Trading Disclosures - Displaying Information About Your Company

The old rules on trading disclosures have now been repealed. As of 1 October 2008, the Companies (Trading Disclosures) Regulations 2008 ("the Regulations") apply instead.

Age Concern and the Compulsory Retirement Age

You may have seen comment in the press on the Advocate General’s opinion issued on Tuesday in the case brought by Age Concern, which is trying to overturn the UK’s default retirement age of 65

The Audiovisual Media Services Directive

The tremors caused by the technological revolution have rippled through most sectors of the media industry

Green Public Procurement

On July 16th, the European Commission published a Communication on green public procurement (GPP).

Freedom to obtain Environmental Information

Freedom To Obtain Environmental Information

EU Emissions Trading Scheme

EU Emissions Trading Scheme

The Control of Pollution Act 1974 (“COPA”)

Enforcement Notice procedure (s49A COPA)

Cleaning Up Scotland

Contaminated Land article

Its Time to Share

Malcolm Holmes, partner in our corporate department and member of the Tods Murray Hospitality & Leisure team, wrote an article for Catering in Scotland in September 2007 which explored the legal issues surrounding Timeshares.

Get in on the Act

Richard Findlay outlines how The Companies Act 2006 will affect the hospitality industry.

The Real Cost for the Sound of Music

In an article in Catering in Scotland, Richard Findlay explores the pitfalls of playing music in a public place without the relevant permission. Read his article reproduced with the kind permission of Catering in Scotland magazine.

Flexible Hours? It’s Time for Change

Read Richard Findlay’s article, in Catering in Scotland, where he provides some pointers on what to expect in the future….

A Lesson on Film Locations

With over 100 Scottish-based production companies and more than 300 facilities companies generating a turnover of £1.2 billion per year, production activity in Scotland is the highest in the UK outside London.

Legal Updates – Cinema and Films

This latest statutory instrument, coming into force on the 1st August 2008, will amend the previous Films Co-Production Agreements Order 1985 (SI 1985/960).

Online Privacy is trying to Injunct Defunct

The recent blackmail saga involving a member of the Royal Family has raised once again the difficulty of protecting privacy in the internet age.

No Surprise Sprung in Springer Blasphemy Action

The High Court in England has recently upheld a decision not to allow a private prosecution for blasphemous libel against the producer and broadcaster of Jerry Springer: the Opera.

Marketers need to be ready for Important New Laws coming into force in April 2008

Two new sets of regulations come into force in April, offering protection from what the DTI have described as "sharp marketing practices".

Privately Ashamed: Publicly Protected?

The Max Mosley trial was, and still is, highly controversial, and not just for its salacious allegations.

Marketing Blogs

Flogging is probably not a term you will have heard of in relation to online marketing.

Another Day, Another TV Phone In Scandal

A number of channels have faced claims over alleged premium rate phone line irregularities in shows in recent weeks, including Richard & Judy, X Factor and even Blue Peter.

It's Good to Talk

As the British Telecom advert once said, “It’s good to talk”.

Has Spam had its Chips?

Recent reports have suggested that almost 80% of the emails received by businesses in 2006 were spam (unsolicited marketing) emails.

Facebook: Signing Your Life Away or Being Immortalised?

The reputation of the internet persistently alternates from being the indispensable fountain of knowledge to moral corrupter of humankind.

Wrist Slapping, Not Happy Slapping

‘Happy Slapping’ is a phenomenon which is undoubtedly a product of our times.

When excluding liability becomes a liability

A recent English case provides a useful reminder of the dangers involved in including exclusion and limitation clauses in contracts.

Changes from October 2007

The Companies Act 2006 is being brought into force gradually, between January 2007 and October 2008.

Changes to Table A applicable to Private Companies

The Companies (Table A to F) (Amendment) Regulations 2007 ("Regulations") came into effect from 1 October 2007.

Delay in Implementation of Companies Act 2006

On 7 November 2007 the Government announced that most of the provisions of the Companies Act 2006 (" the Act") due to be commenced 1 October 2008 will now be put back to 1 October 2009.

Less than four months left to take advantage of the current CGT Regime

In his Pre-Budget Report, the Chancellor announced radical changes to the capital gains tax regime which will affect individuals and trusts from 6 April 2008.

Final Implementation Timetable for Companies Act 2006

On 13 December 2007, the Government published a written statement regarding final implementation of the Companies Act 2006.

The Companies Act 2006: A Deliberate Mistake

While there was extensive consultation at the time of preparation of the Companies Act 2006, it is only when anxious lawyers have an opportunity to examine the detailed wording that some of the unintended consequences of new legislation come to light.

New requirement for Companies to have a "Natural" Person as Director

Further provisions of the Companies Act 2006 relating to directors will come into force with effect from 1st October 2008.

Corporate Homicide

New Act enables prosecution of Organisations where corporate management failings lead to death.

Lawyers rejoice at the imminent end of the "financial assistance" prohibition

While the Companies Act 2006 has introduced some notable amendments to companies legislation, the change which will perhaps be most welcomed by corporate and banking lawyers is the abolition, with effect from 1 October 2008, of the so-called financial assistance prohibition as regards private companies.

A Cautionary Tale: Your Word May Well Be Your Bond

In July 2007 Justice Andrew Smith pronounced judgement in Bear Stearns Bank Plc v Forum Global Equity Ltd[1]which casts serious doubt over whether a true meeting of the minds is required for the law to uphold a commercial transaction.

Damages for Breach of Contract

In a recent decision, the Law Lords have substantially re-written the rules on liability for damages for breach of contract.

The International Financial Reporting Standards

IFRS were created by the International Accounting Standards Board (IASB) in April 2001, when they adopted all International Accounting Standards by the board of the International Accounting Standards Committee and continued their development under the name of IFRS.

Safe System of Work for All Employees

The Trustees of an estate in the Scottish Borders were recently prosecuted and fined £3,000 following the tragic death of a gamekeeper in October 2004 when his quad bike crashed on a remote hillside on the Estate.

Renewables Obligation in the UK

The statutory Renewables Obligation, which applies throughout the United Kingdom, lays down the 2010 target for the percentage of electricity sold in the UK that must come from renewable sources.

Greenhouse Gas Emissions Trading Scheme - Identifying the Operator

Key to the Greenhouse Gas Emissions Trading Scheme Regulations 2005 (“GGETS Regulations”) is identifying who is the operator of an installation.

Encouraging Fundraising in a Tax Efficient Manner

Anne Marie Renz, Head of Business Tax at Tods Murray, focuses on some of the ways in which donors can donate to charities in a tax efficient manner and looks at some of the reliefs available when a valuable asset is donated to charity.

Finding Common Ground

Lucy Metcalf, a senior associate in our Family Law team is accredited by the Law Society of Scotland as a Family Mediator. Lucy is a very experienced family law solicitor but her mediation training has enabled her to develop new techniques and skills in relation to the resolution of disputes and management of conflict.

Is a mandatory retirement age legal?

The European Court of Justice has handed down its judgement in the case of Félix Palacios de la Villa v Cortefiel Servicios SA, referred to it by a Spanish court.

A day's pay and accrued holiday pay on termination

When calculating what an employee is due to be paid for accrued holidays, the law relating to how many days' holiday accrue is regulated by the Working Time Regulations 1998 as amended or the contract of employment.

Alcoholism and dismissal

Alcoholism can be a serious problem for employers and employees.

Preventing Illegal Working

Employers have a responsibility to prevent illegal working in the United Kingdom.

Working time opt-out to remain

At a meeting of the EU Employment and Social Affairs Council, the Government has retained the right for UK workers to opt out of the 48 hour maximum working week, in exchange for a new agreement on increased rights for agency workers.

New Rules for Charities on references in documents

Scottish and cross-border charities registered with OSCR will have to comply with new rules governing the information which must be included in documents with effect from 1 April 2008.

Data Protection: Are you Exempt?

In response to enquiries from the Third Sector, the Information Commissioner's Office (ICO) has recently published guidance on the obligations of charities and voluntary organisations under the Data Protection Act.

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