Michelmores has advised Forestry England on a contract which will see the organisation work with Cuffe and Taylor to deliver Forest Live shows.

Forest Live is a major outdoor live music series that introduces forests to new audiences in unique, natural woodland arenas around the country.

Forestry England manages 1,500 of the nation’s woods and forests. Its land has been used to stage the Forest Live concert series for the past 22 years, during which two million people have attended the shows.

Live Nation’s Cuffe and Taylor has agreed to an exclusive seven-year contract to present Forestry England’s major outdoor live music series, involving a series of sustainability initiatives delivered in line with Forestry England’s net zero ambitions.

Live Nation has also said it has aspirations to present up to 32 concerts a year to a combined audience of more than 250,000 people at sites in Staffordshire, Cheshire, Suffolk, Gloucestershire, Kent, North Yorkshire and Nottinghamshire.

Chloe Vernon-Shore, a Partner in Michelmores’ Commercial team, comments:

“We are pleased to have supported this collaboration between Forestry England and Cuffe and Taylor, using our pragmatism and expertise to put together the legal framework for Forest Live 2024 and onwards.

“The exciting partnership enables brilliant live music experiences in wonderful natural locations, while sharing our Firm’s efforts to provide a sustainable future for people, nature, and the climate.”

Read more about the Firm’s outstanding Commercial team here.

What are the enforcement options currently available to the ICO?

The current ICO enforcement toolbox includes prosecutions, monetary penalties, enforcement notices requiring ICO prescribed action, and reprimands. Since January 2020, 152 enforcement actions have been taken by the ICO comprising 61 monetary penalties (the largest category of enforcement action), 45 reprimands, 43 enforcement notices and three prosecutions. The top three sectors in which enforcement action was taken were marketing, finance insurance & credit, and retail & manufacturing. However, the ICO’s approach to enforcement action has undergone recent change.

A change in approach

In a keynote speech to the National Association of Data Protection Officers’ annual conference in November 2022, the Information Commissioner – John Edwards – set out the ICO’s new strategic approach to enforcement, in particular relating to the public sector. This new approach focuses on:

• outcomes rather than outputs – the emphasis being on good results for the public rather than big financial penalties on organisations;
• a change in the approach to Monetary Penalty Notices (MPNs) for public authorities – seeking to avoid MPNs and the “money-go-round” of public funds; and
• a switch to reprimands – noting that damage to reputation and public impression can have a much bigger influence than imposing financial penalties, in particular as reprimands are now publishable (since January 2022) and cannot be appealed to the First Tier Tribunal unlike the ICO’s decision notices.

In his speech, the Commissioner explained how the definition of enforcement is a graduated response in respect of non-compliance rather than an automatic association between enforcement and fines. The Commissioner gave the example of the Department for Education detailed below where, under the old system of enforcement, the fine could have been in the region of £10 million. The Commissioner explained however, that enforcement action was based on the principles of accountability, transparency, certainty, predictability and flexibility so that organisations using personal data know what the law expects of them, how they can use personal data in terms of innovation and service or product delivery whilst remaining compliant and what will happen if they don’t comply with the law.

Examples of recent action by the ICO under the new approach

This change in approach is demonstrated by only one MPN for a public authority being issued by the ICO since January 2020. The MPN concerned was for an NHS Trust in the sum of £78,400 for sending bulk emails to over 1,000 gender identity clinic service users and highlighted the Trust’s serious failure to comply with data protection legislation.

However, it should be noted that MPNs and enforcement notices are still very much in use by the ICO for the most serious breaches of data protection law and the Commissioner explained that these will still be used where they are “truly needed”. You might have read about the recent ICO fine imposed on TikTok in the sum of £12.7m regarding children’s data on their platform and insufficient checks and balances as to the ages of the children concerned making use of the platform. In 2020, the ICO required Experian to contact every one of the individuals affected by the invisible profiling which the ICO alleged was taking place on a large scale.

A total of 45 reprimands have been issued by the ICO since January 2020 across the spectrum of private and public sector organisations, including:

• Government departments – such as the Ministry of Justice for bags of confidential waste found in an unsecured holding area in a prison and the Department of Education for failures in security allowing third party access to its database and processing of personal data including that of children, held by the DfE, without appropriate control of oversight or transparency as to the purposes for the processing by those third parties.
• Private companies – such as Virgin Media Limited – who received 9,500 Subject Access Requests (SAR) over a six-month period in 2021, 14% of which were not responded to within the statutory timeframe, and the Chartered Institute for Securities & Investment following the exploitation of a known vulnerability in the Institute’s software to leverage a cyber-attack in which malicious code was uploaded to the Institute’s website, capturing payment details of around 3,800 data subjects and other personal data such as names and email addresses.
• The NHS – including for the Blood and Transplant service for inadvertently releasing untested development code into a live system for matching transplant list patients with donated organs in August 2019 and for the permanent loss and inaccessibility of some patient records downloaded prior to the transfer from one electronic document viewing system to another.
• The Police – including the Metropolitan Police Service for an “immature” ability in its systems, to ensure that sensitive criminal records information uploaded daily to the Police National Database, were correctly loaded. Additionally, the Chief Constable of Kent Police for failure to complete 40% of SARs within the statutory deadline, with some taking over 18 months for Kent Police to respond to and, as of May 2022, in excess of 200 SARs remaining overdue.
• Local Authorities – including for non-compliance with SAR requirements under the UK GDPR and failure to respond to SARs within the statutory time limit as well as data breach situations. In one incident, a local Council sent papers prepared as a Court bundle in Child Protection legal proceedings and containing sensitive information such as medical information relating to the child and the home address of the mother and her two children, to both parents of the child in question.

Takeaway points

1. No organisation, whether operating in the private or public sector is immune from ICO enforcement action and the examples of reprimand action taken since January 2020 confirms the ICO’s new approach in practice.
2. As the strategy identifies, damage to reputation and public impression can indeed have a much bigger influence on compliance than imposing financial penalties.
3. Whilst the new strategy might reduce the need for organisations to set aside funds for the payment of MPNs, non-compliance in the form of reprimands could still be costly.

If you would like further advice or insight on any matters relating to data protection or enforcement, please contact Emily Aggett or another member of our Data Protection & Privacy team.

Jalla and another -v- Shell International Trading and Shipping Co Ltd and another (“Jalla”)

The tort of private nuisance has received significant judicial attention from the U.K. Supreme Court in 2023. The judgment in Fearn v Board of Trustees of the Tate Gallery (“Fearn”) [2023] UKSC 4 was given on 1 February 2023. Fearn clarified that intrusive viewing from a neighbouring property (in that case the Blavatnik Building, part of the Tate Modern art museum in London) into residential flats, can in principle (and did in that case) give rise to a claim for private nuisance.

Following Fearn, the Supreme Court, in Jalla, has provided authority on the circumstances in which a private nuisance is continuing and constitutes a ‘continuing cause of action’, a concept which has implications for the limitation period (the length of time potential claimants have to bring a claim).

This article examines:

• what the tort of private nuisance is;
• the concept of the continuing cause of action and its impact upon the limitation period; and
• the implications of the Supreme Court judgment in Jalla.

Background: what is private nuisance?

The tort of private nuisance is committed: “where the defendant’s activity, or a state of affairs for which the defendant is responsible, unduly interferes with (or, as it has commonly been expressed, causes a substantial and unreasonable interference with) the use and enjoyment of the claimant’s land“[1].

There is considerable scope for private nuisance claims to be brought and such potential claims may relate to (amongst others): odour, noise, intrusive viewing (as in Fearn), Japanese knotweed, tree roots, and environmental damage including oil spills such as in Jalla.

Jalla: the facts

In Jalla, the private nuisance claim arose from a major oil spill brought against a company within the Shell PLC group of companies. Despite the incident occurring in Nigeria, Jalla represents a further example of multinational companies being sued in the jurisdiction of England and Wales for oil spills. For further analysis of this trend, please see Michelmores’ article here: Liability for MNE’s in environmental law

The oil spill in Jalla was caused by an oil leak during operations at an offshore installation in an oil field which occurred off the coast of Nigeria in December 2011. The oil leak was stopped within six hours. This is an important point in categorising the incident as a one-off, rather than a continuing event, which will be revisited later in the article.

The claimants’ case was that the oil had not been removed or cleaned up and was continuing to cause them a private nuisance by reason of undue interference and enjoyment of their land.

Limitation Issues: the claim

The claimants issued their claim form in December 2017. The relevance of this is that in the jurisdiction of England and Wales, pursuant to S2 Limitation Act 1980, generally a claimant has six years from the date of the cause of action to bring a claim. Therefore, the claimants had no initial issue with limitation having issued their claim within time.

However, In April 2018 (beyond six years after the spill) the claimants attempted to amend their claim form and particulars of the claim.

The claimants argued that the claim constituted a continuing cause of action and, on that basis, that their amendments were not outside of a relevant limitation period and should be allowed.

The defendants resisted the application on the basis that the amendments were sought after the expiry of the limitation period and the claimants had to satisfy the requirements of the Civil Procedure Rules (“CPR”) relating to amending a statement of case outside a limitation period[2].

What is a continuing nuisance and why is it relevant?

At paragraph 26 of the judgment, the Judge described a continuing cause of action as follows (emphasis added):

“In principle, and in general terms, a continuing nuisance is one where, outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant’s land. For a continuing nuisance, the interference may be similar on each occasion but the important point is that it is continuing day after day or on another regular basis. So, for example, smoke, noise, smells, vibrations and, as in Fearn, overlooking are continuing nuisances where those interferences are continuing on a regular basis. The cause of action therefore accrues afresh on a continuing basis.”

The relevance of a set of facts constituting a continuing cause of action is that the limitation period runs afresh from day to day. Had the Court found the facts of Jalla to constitute a continuing cause of action, the claimants’ proposed amendments to their claim would not face a limitation issue. More generally, the continuing cause of action concept means that, in circumstances constituting a continuing cause of action, a defendant committing a private nuisance continues to face litigation exposure even after six years has passed following the original incident.

The key issue for the Supreme Court to decide in Jalla was whether a one-off oil spill could constitute a continuing cause of action on the basis that the oil had allegedly not been cleaned up.

The Findings

The Judge summarised the claimants’ submissions as follows: “The essence.. is that there is a continuing nuisance in this case because, on the facts that are to be assumed for the purposes of this appeal, the oil is still present on the claimants’ land and has not been removed or cleaned up[3].”

Developing the point, the Judge illustrated the practical consequences of the claimants’ case on what constitutes a continuing cause of action by the following example: if a claimant’s land was flooded by an isolated incident on day one, if the land remained flooded on day 1000 there would be a fresh cause of action accruing day by day.

The Judge described the claimants’ submission as incorrect and found there to be no continuing cause of action in Jalla as to accept the claimants’ conception of a continuing cause of action that would undermine the law on limitation of actions. In coming to this finding, the Judge noted that: “there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants’ land[4]“. The Judge distinguished the one-off oil spill in Jalla with the example of a tree roots case which “provides a good example of a continuing nuisance…. In such a case, there is an ongoing state of affairs outside the claimant’s land, constituted by the living tree and its roots, for which the defendant is responsible and which causes, by extraction of water through its encroaching roots, continuing undue interference with the claimant’s land. The cause of action for the tort of private nuisance therefore accrues afresh from day to day“[5].

The Implications

The distinction between one-off events and events constituting a continuing nuisance have significant implications for the limitation period, with the former type of claims having to be brought within six years of the event and the latter type accruing a fresh cause of action for each day the nuisance is continuing (meaning that the limitation period extends). Those operating in sectors which may give rise to potential nuisance claims should take note of the requirement of “repeated activity or an ongoing state of affairs” required for a set of facts to constitute a continuing cause of action (in addition to the general nuisance requirements including causing undue interference with a potential claimants’ enjoyment of the land).

[1] Paragraph 2, Jalla v Shell [2023] UKSC 16: https://www.bailii.org/uk/cases/UKSC/2023/16.html

[2] CPR rr 17.4.

[3] Paragraph 34, Jalla v Shell [2023] UKSC 16

[4] Paragraph 37, ibid

[5] Paragraph 30, ibid

Click here to listen to the accompanying podcast.

As part of the Government measures to help the UK meet its commitments to combat climate change, the Environment Act 2021 introduced a new 10% biodiversity net gain requirement, which will be imposed on most new planning developments from the date when it comes into force. This is likely to be later this year. We explain what biodiversity net gain is and focus on the opportunities it presents.

What is biodiversity net gain?

Biodiversity net gain (BNG) is a strategy for contributing to the recovery of nature whilst developing land. The Environment Act 2021 requires that development land must be left in a better state for wildlife than before the development. These provisions will come into full force during 2023 and require a minimum 10% increase in biodiversity as a result of any development.

Implementation of BNG is of course significant, as once the legislation takes effect, most developments will need to yield an increase of biodiversity in order for developers to obtain the required planning consents. Accordingly, BNG will be a live issue across most development sites which require any form of planning consent after the implementation date. For more details on the basics on BNG, see our previous article here.

Obstacle or opportunity?

The need to increase biodiversity will add additional considerations for developers on how they plan their sites and also impact on the profitability of those sites. In this way, BNG may be considered an obstacle. However, beyond this, BNG also offers a range of new opportunities for those willing and able to capitalise on the legislative changes.

One such opportunity is BNG land banking. This is where a landowner takes steps to increase the biodiversity on their land and then sells the benefit of this increased biodiversity to a developer as a “credit” to offset the loss of biodiversity arising from their development. Purchasing these BNG “credits” allows developers to meet the BNG requirements without needing to improve the biodiversity of the actual development site. A land banking arrangement also relieves the developer of the burden of managing the site in a way that ensures the gain of biodiversity is maintained. Selling BNG credits to developers allows landowners to generate income whilst managing land in an environmentally conscious manner.

Form of a BNG deal

A BNG deal typically has two limbs.

First, there will be a commercial agreement between the landowner and the developer. This will be for the purchase of BNG “credits”. The developer will buy these “credits” and the landowner will undertake to manage the land in a way that will protect the habitat and so yield the required increase in biodiversity.

There will then be a further agreement between the landowner, the developer and the local planning authority. This agreement is the mechanism by which the creation and maintenance of the habitat can be enforced. Currently, this is taking the form of a s106 agreement, but in due course this is likely to be replaced by a new legal structure called a conservation covenant. Although technically in force, the practical working of conservation covenants has yet to be finalised by the Government, but this should be completed this year.

For landowners looking to take advantage of BNG and developers needing to meet the requirements, there are some key considerations which need to be taken into account when formulating specific BNG deals.

Key considerations for developers

• Developers need to familiarise themselves with the upcoming changes and consider the steps they need to take to meet the new requirements. We have previously provided an overview of what those steps might entail here.

This may be done through factoring in increased biodiversity on site or looking to make use of BNG land banking with off-site provision. We have considered the use of off-site BNG here. Developers considering on site provision should consult Natural England’s Biodiversity Matrix, so that they can assess the existing levels of biodiversity at a site and work out how to bring about the required increase.

• Developers also need to consider whether their existing agreements remain suitable in light of the upcoming changes. If not, they may need to approach landowners and seek to vary the terms in light of the additional costs. This might in turn, however, encourage landowners to seek to renegotiate some of the other terms.
• Developers should address in any written documents what will happen if planning consent is refused due to BNG issues; who will carry that risk and what action each party will then take.

Key considerations for landowners

• Landowners need to consider the impact of entering into a BNG deal.

Typically, landowners will be committing to manage their land in a way that protects the credits they have sold for at least 30 years. Being tied in to such a long-term obligation will obviously impact on how landowners can manage their land and its underlying capital value. So, this will need to be considered carefully before signing up.

• Using land for habitat creation will also impact on succession planning for landowners. Landowners need to balance using the land to create habitat, whilst also retaining the required element of agricultural use needed to qualify for agricultural property relief in relation to inheritance tax. This potential issue is compounded by the long-term nature of BNG deals, as landowners will be committing to that use for an extended period of time.
• Another consideration for landowners is the risk of breaching their obligations under the agreement due to factors outside of their control. Creating and maintaining a habitat is dependant on more than just the steps taken by the landowner, including natural and environmental factors such as climate change. Landowners must be careful to protect themselves from the impact of these factors. Suitable steps could include the inclusion of force majeure type clauses, which remove or reduce the obligation if damage is caused by circumstances outside the landowner’s control.

Even where a landowner is not looking for a specific BNG deal, they should be mindful of the BNG potential of their land and its value to prospective developers. This is particularly relevant when developers seek to take on additional land as part of a development. If the pricing mechanism in an existing development agreement does not reflect the BNG potential of the land, there is a risk that it will be undervalued. This is particularly the case if the land does not have development potential in a traditional sense.

Importance of additionality

A key consideration for landowners and developers alike is the requirement that credit can only be claimed in respect of an environmental benefit once. A site can be managed to produce a BNG benefit, as well as perhaps an improvement in nutrient neutrality. Whilst it is possible to claim both in relation to a site, it is not possible to combine this and obtain other benefits, such as carbon credits, without additional measures being implemented. Choosing the appropriate metric for any given change will therefore be important in order to bring about the most profitable outcome whilst meeting all of the required standards.

The additionality requirement is also important in the context of planning a development site. Developers are unlikely to be able to rely on green spaces and “habitat” to meet their BNG requirements, where those features are already required as a condition of planning consent. Developers will need to find other ways to incorporate features aimed at increasing biodiversity on a site and not simply rely on existing features or those that would be present in any event.

Two cases at the end of last year have clarified the rules around service of court documents by email.

Court documents can be validly served by email, providing the receiving party has indicated in writing that this is acceptable. The relevant rules are set out in Practice Direction 6A of the Civil Procedure Rules.

A decision in the Administrative Court in October 2022 caused some concern amongst practitioners when it was held that service of a claim form by email was valid only if the recipient nominated a single email address rather than multiple addresses. In that case (R (Tax Returned Ltd & Ors v Commissioners for HMRC [2022] EWHC 2515 (Admin)), the receiving party had provided two email addresses, so service of the claim form was ineffective.

Two months later, in in the case of Entertainment One UK Ltd & Anor v Sconnect Co Ltd & Ors [2022] EWHC 3295 (Ch), the opposite conclusion was reached. This decision from the High Court’s Chancery Division was that service of the claim form was valid even though the defendants’ solicitors had provided more than one email address.

The confusion caused by these two cases was noted by the Civil Procedure Rules Committee and an amendment made to the rules to clarify the position. The amendment came into force on 6 April 2023 and confirms that, as per the decision in Entertainment One UK, multiple email addresses can be provided. However, where multiple email addresses are provided by the receiving party, service will be effective when the document is sent to any two of the email addresses.

As the judge in Entertainment One UK noted, providing more than one email address for service is often a sensible option, in case one recipient isn’t working or is unavoidably unable to access their emails, or one email address just doesn’t work on the day.

The other issue considered in Entertainment One UK was whether serving parties had to check for any limitations on what recipients could receive by email before service could validly be effected. The judge again took a pragmatic approach, concluding that unless a solicitor stated at the outset that there were limitations, it was fair to assume that there were none.

Click here to listen to the accompanying podcast.

Competition for land, particularly on an island, is hardly a novel challenge in the UK. Agricultural intensification as well as non-food drivers, including infrastructure projects and expanding urban areas, have all increased pressure on land use. In this article we will look at the various demands on our land and consider the role which insect protein could play in alleviating this pressure.

Demands

The continued demand for housing and energy, as well as food production all have a substantial impact on land use. These demands must be balanced with the space needed for nature to provide the ecosystem services that are central to our existence and prosperity.

There is considerable pressure on the agriculture sector to farm sustainably, including recognising the finite supply of land. The use of insect protein in animal feed (in particular) is seen as one of the ways in which the agriculture sector can address this issue.

Land used for feeding livestock

It is estimated that 40% of the UK’s arable land area (around 2 million hectares) is used for growing crops to feed to livestock.[1] The UK also imports more than 3million tonnes of soya each year,[2] which equates to 850,000 hectares of land use outside of the UK.[3] Around 90% of imported soya is used in feed for livestock.[4] The majority of imported soya comes from South America and so this is considered a major contributor to deforestation.

There is huge potential for a significant proportion of crops grown for livestock feed to be replaced by insect protein. This would free up land both in the UK and globally, easing the competition for land. The 2021 WWF Report: ‘The Future of Feed: A WWF Roadmap to Accelerating Insect Protein in UK Feeds’ projected that “…the total demand for insect meal from the UK’s pig, poultry and salmon sectors could reach the region of 540,000 tonnes a year by 2050. Of this, around 240,000 tonnes of insect meal per year could be sourced from UK insect farms.”

Transition to a circular economy

As well as freeing up land, the use of insects in our food system has huge potential for helping the transition towards a circular economy. In particular, their ability to convert organic matter into high quality protein. Insects are extremely efficient converters of waste to protein.  As a direct comparison, to produce 1kg of cricket protein requires 1.7kg of feed, to produce the same amount of beef protein requires 10kg of feed.  As well as high feed conversion rates, insect production has the advantage of a low environmental footprint, requiring substantially less land and water for production. This is a role that insects perform so effectively that there is, simply, no such thing as waste in nature.

Nutritional value of insects

The nutritional profile of insects is also persuasive when considering their role in the food chain. In some instances, insect protein is capable of replacing soymeal and fishmeal in animal feed with a comparative essential amino acid protein profile.

Insect protein production

The development of the insect protein industry in the UK in particular has demonstrated how versatile and adaptable the sector can be at providing on-farm solutions not only for surplus crops (over 3 million tonnes of food waste per year is created on farms in the UK[5]) and by-products (e.g. brewers grain or ground coffee) but also as a means of utilising excess energy, for example, generated from an anaerobic digester. We are already seeing mobile insect production units being deployed on farms to feed crop/food surplus to soldier-fly larvae, which is high in protein and other essential nutrients and then used to feed to laying hens.[6]

In addition, frass, which is the mix of excreta, feeding substrate and other matter left once farmed insects are ‘harvested’, is a valuable co-product as a fertiliser. Further demonstrating the circular properties of this industry. The value of frass is now considered to be on- par with insect protein itself.

Legislation lagging behind

Despite the prospects presented by the industry, on a number of fronts, developments in the legislation required to support the industry in the UK have failed to keep pace. Whilst EU legislation has forged forward to recognise the role that insects have in the feed system for pigs and poultry (acknowledging that insects form a natural part of the diet for both of these animals), in the UK the feeding of insect protein to chicken and pigs remains prohibited (except as live larvae in chicken feed). There are also considerable regulatory restrictions on the use of food surplus as feed for insects.

The insect protein industry in the UK demonstrates huge potential for tackling some of the most pressing issues that the agriculture sector faces. It also presents great opportunities for farmers looking for alternative ways to diversify their businesses.

However, in order to realise the potential of insects in reducing the use of land for production of animal feed and to stop the loss of vital nutrients through food waste, the legislation must now reflect the substantial developments in the industry.

[1] WWF ‘The future of feed: How low opportunity cost livestock feed could support a more regenerative UK food system’ report (July 2022)

[2] Resilience of the UK food system regarding demand for soy (foodsystemresilienceuk.org)

[3] WWF ‘The future of feed: How low opportunity cost livestock feed could support a more regenerative UK food system’ report (July 2022)

[4] Resilience of the UK food system regarding demand for soy (foodsystemresilienceuk.org) SEI York, D Chris West and Global Food Security-Food System Research.

[5] WWF ‘Hidden Waste: The scale and impact of food waste in primary production’ report (October 2022)

[6] Current legislation restricts the use of Processed Animal Protein to poultry. Therefore the larvae must be fed live.

Click here to listen to the accompanying podcast.

The Changing Markets Foundation, a Dutch environmental group, has identified systemic “greenwashing” in the UK food sector involving claims such as ‘climate positive’ ‘carbon neutral’ and ‘net zero,’ as well as specific claims about low methane.

Why is greenwashing a problem?

Greenwashing is a catch all phrase for overstating your environmental credentials. It is a problem because making a claim that cannot be substantiated is against the UK’s advertising and consumer rules. These rules are enforced by the Advertising Standards Authority, the Trading Standards Service and the Competition and Markets Authority.

The ASA’s guidance on ‘The environment: misleading claims and social responsibility in advertising’ was updated in February 2023 and made clear that advertisers should not use phrases such as ‘carbon neutral’ and ‘net zero’ unless “they have robust substantiation”.

In order to substantiate their claims, manufacturers and retailers look to their suppliers for the substantiation required to advertise their products as “green”. As suppliers to the food sector, anyone in the agricultural sector could be called upon to demonstrate their “green” credentials to support a green claim of the final product. Any break in the supply chain could mean that the claim is not supported by “robust substantiation” and thus open suppliers up to a potential liability.

How to demonstrate environmental credentials without overstepping the mark

Consumers demand ever higher welfare standards and expect the agriculture sector to be managing assets to produce a positive impact on the environment.  As everyone knows, the Government’s ELMS scheme is also placing even more emphasis on the need for English agriculture to place the wider environment at its heart. Therefore, the key to “substantiation” is for the supplier to record the steps it is taking (or intends to take) and make sure that these steps form the basis for any “green” claims it makes (or is asked to evidence).

YouGov polling across the UK and Germany, commissioned by the Changing Markets Foundation, found that almost half (49%) of people regularly choose food products with environmental sustainability labels or certifications. From a commercial perspective, the survey also found that one in three (35%) of these consumers are willing to pay more for positive climate and animal welfare labels. This means that it makes good economic sense to leverage good environmental practices to deliver higher returns on investment.

However, on the flip side is that 59% of consumers were worried about the issue of corporate greenwashing. Further, the polling showed low levels of trust in sustainability claims about certain products, in particular meat and dairy products.

Changing Markets Foundation

Obviously, it needs to be recognised that the Changing Markets Foundation is an advocacy group trying to stop greenwashing and in this regard its website www.greenwash.com gives lots of examples which show who it has in its crosshairs. Having said that, its key findings are illuminating.  It found:

• “Greenwashing in the food sector is rampant” – not only did it identify the use of “absolute” climate claims such as ‘carbon neutral’, ‘climate positive’ and ‘net zero’ as made without substantiation but also regarded images of grazing cows and small family farms with happy animals as a more subtle form of greenwashing.
• “Meat and dairy companies responsible for greenhouse gas emissions were singled out for misleading green claims” on their products or in their other marketing materials.
• It “identified vague claims, such as ‘planet-friendly’ and ‘sustainable future’ as misleading” as well as the inclusion of some of the most carbon-intensive food products in climate-friendly food categories.

Auditing suppliers’ “green” credentials – challenges for manufacturers

To offer some balance to the finding of “rampant greenwashing”, it should be recognised just how hard it can be to audit “green” credentials, to provide the evidence required to substantiate a marketing claim.

If an absolute claim, such as “carbon neutral”, is made in respect of a product as a whole, that means everything required to get the product from field to plate needs to be carbon neutral. In other words an assessment of the whole lifecycle of the product needs to be undertaken, which extends to any recycling of waste products. That means not only the product and its packaging but also the transport, the way the land is managed, the buildings are used, and even how the employees get to work, need to be assessed. Accordingly, this is very difficult to demonstrate.

The challenges for the agricultural sector in making “green” claims?

Given the difficulties in substantiating “absolute” green claims, a more realistic approach is to assess what you are doing well and make specific claims regarding those areas. In practice this means choosing a specific activity or process, seeing what its impact is on the environment and then taking steps to improve it. For example, it might be that all power can be sourced from a carbon neutral supply, either on or off grid, and therefore a “carbon neutral power” claim could be made. It might be that improvements in irrigation and water storage and management means less water is being used than previously and so a relative “X% less water” claim could be adopted.

Alternatively, it might be that a supplier intends to become net zero by 2050 in line with the Paris Agreement. Provided the supplier has an active plan to deliver this, it can make a “net zero pledge” to this effect. In order to substantiate the pledge it will be necessary to show the steps being taken which make the claim realistic and achievable by 2050.

I am certified “organic”, can I make this “green” claim?

If a supplier is certified as “organic” then obviously this claim can be made, which in itself is a type of “green” claim. However, it is important not to conflate different concepts.

For example, if a supplier claims to be “100% environmentally friendly” based on an organic certification, then this claim is likely to be challenged. Why?  A claim such as “100% environmentally friendly” is an absolute claim about every aspect of its operations not just those operations which were necessary to be certified organic. Therefore, unless the supplier could also demonstrate that power use, transport, processing, etc is also “100% environmentally friendly” then the claim cannot be substantiated.

The way to use an organic certification would be to make a relative environmental claim based on it. For example, the phrase “organically certified which means less use of pesticides than in conventional farming methods” could be used. In this way, the claim is made by reference to a specific environment benefit of organic farming.

Conclusion

The industry can avoid greenwashing and make claims about the positive steps it is taking to improve the environment for everyone.  What is more, it can leverage these claims and put more value into the supply chain. However, whatever the claim, it needs to be substantiated.

If you are reading this it is very likely that congratulations are in order. After countless applications, video interviews and probing in-person interviews you have successfully secured a vacation scheme! This alone is an accomplishment to be proud of, but now you have an opportunity to really show your potential as a future lawyer. I’ve shared some of my top tips (and inside knowledge from Michelmores) on how to impress during your vacation scheme.

The most important tip – enjoy it!

It is completely understandable that when you start your vacation scheme you will be a little bit nervous, don’t worry, you are not alone! Those nerves will quickly dissipate, however, and you will then be able to take the time to enjoy your vacation scheme. Dan O’Sullivan, one of our current trainees, has shared his insight into what he enjoyed about his vacation scheme last year:

“The vacation scheme is a great opportunity to gain a first-hand insight into trainee tasks, the practical side of working in a law firm and the expectations that come with it. It’s particularly useful for those who are less experienced and want to ascertain whether a career in law is for them and whether they and the firm are a good fit from a cultural perspective.”

Research the firm

Of course, you know lots about the firm before you start your vacation scheme, but in a sector as fast paced as law, there are always changes and it is important to keep up to speed. Before you start make sure to revisit and refresh your knowledge of the firm, and look for anything new which is particularly interesting. For example, Michelmores’ has recently undergone a massive rebrand which has involved an overhaul of our website, changing our logo and launching our Destination 2030 strategy.

This research shouldn’t just be limited to information about the firm, but also wider commercial awareness. Showing that you are up to date with recent events will help you stand out for all the right reasons.

Present your best self

This does not mean you need to arrive in a tailored three-piece suit directly from Savile Row, but dressing in shorts and a t-shirt on your first day will not help you to be remembered for the right reasons. A good tip for wherever you work is that you can always dress down if you are over-dressed (i.e. take off your jacket and tie), but it is very difficult to do the reverse. My advice is to dress professionally on your first day, see what everyone else wears and then you can always adapt your wardrobe for the rest of the week.

In addition to this, it is important to be equipped. A simple note pad and pen will allow you to take notes of the key information that you will be told during your week with the firm, whether that is information that relates to work you have been asked to complete or interesting topics you want to research further. Being proactive in this way will allow you to make a good impression throughout your vacation scheme.

Once you are in the door

It isn’t just a case of being equipped with pen and paper, but also an interest in the firm and the work that we do. Georgie Lewis, one of our Recruitment Business Partners, has shared one of her top tips for vacation scheme students:

“Think of the questions you want to ask before you start your vacation scheme, and do not leave the premises until you have an answer to all of them.”

Now you are in the firm you will have a number of opportunities to network and ask everything you want to know, whether that is why other members of your team enjoy working at Michelmores, or what they think about one of the latest legal topics you have been reading about. It is also good to speak everyone you can at the firm to get a range of answers to your questions. The reality is that anyone could be asked how they thought you did during the week, so it is important to interact with as many people as possible.

While thinking about the questions you want to ask, reflect on the research you have done before starting. If you ask about an area of law which we do not advise on, it may raise questions about how well you really know our business.

The assessments

Vacation schemes aren’t just an opportunity to network and integrate with the firm. We do offer training contracts to vacation scheme students, subject to performing well during our assessments throughout the week.

The most important tip here is, don’t worry! If you have been offered a vacation scheme then you have already shown yourself to be extremely capable and to possess the skills and characteristics that we look for in our lawyers. Think of the assessments as your opportunity to further display those skills and traits to give yourself the best chance of being offered a training contract.

During the week you will complete: a group presentation; a written task; a verbal reasoning test; an article discussion; and an interview. It is important to remember that none of these assessments are designed to trap you or trip you up in anyway, nor will they require any existing knowledge of the law. You will be assessed on your critical thinking, research and communication skills, as well as giving a deeper insight into why you want to work with us.

My advice for each of these tasks is to let your personality show through. There is no ‘one type of lawyer’ so simply trying to ‘play the part’ will seem unnatural and not allow us to get to know the real you. Be confident in yourself and your abilities, that will help to help you to push through the nerves and show us why you deserve a training contract.

And like I said… enjoy the week!

On 19 April 2023, Sir Geoffrey Vos, Master of the Rolls, gave the Second Annual McNair Lecture. His topic was titled “The future of London as a pre-eminent dispute resolution centre: opportunities and challenges”.

Sir Geoffrey concluded that the opportunities and challenges are one and the same. He posited that the UK can remain one of the most attractive dispute resolution centres in the world but only if it embraces new challenges. He listed five challenges, ranging from how the Covid-19 Pandemic has changed commerce to the effect of Brexit, but the focus of the lecture was on the advent of generative artificial intelligence (AI) and its potential use in the judicial process in the future.

Generative artificial intelligence

Whether we are conscious of it or not, we use AI every day. Generative AI is developing at breakneck speed. Generative Pre-trained Transformer 4 (GPT-4), available publicly through Chat GPT, was released by OpenAI on 14 March 2023. A fascinating (and, perhaps a little troubling) fact given by Sir Geoffrey was that when the previous generation of the technology, GPT 3.5, took the US Bar exams it came in the bottom 10%. When GPT-4 took them recently, it came in the top 10%.

The question posed in the lecture was “Can AI take judicial decisions in future in place of humans?”. Sir Geoffrey was strong in his view that, yes, AI is likely to be used to take judicial decisions in the future. He did, however, caveat that conclusion by stating that there will need to be a number of controls in place:

1. In the first instance AI will only be used to take minor decisions in specific types of commercial disputes
2. It is unlikely that AI will ever be used to decide matters of personal liberty, matters involving the welfare of children and the like
3. If AI is implemented there should always be the option of appeal to a human judge

In Sir Geoffrey’s view, the advent of AI in judicial decision making will, to a large extent, depend on the confidence placed in it by litigants, and the wider-public in general. Farfetched it may seem, but the use of AI in commercial dispute resolution may already be used in the private sphere. It is likely that some large multinationals  (such as Amazon, Ebay etc.) already employ AI to adjudicate minor disputes. In the majority of those disputes, the AI generated decision is, more often than not, accepted by the parties. Why then can AI not be expanded to the formal judicial process?

The future

The legal industry and, in particular, the judicial system in England and Wales is well known for being slow to adapt to technological change. Indeed, the Courts only engaged in earnest with technology when they were forced to do so as a result of the pandemic.

If AI, digitisation and modern technologies are not embraced, London will inevitably decline as a pre-eminent dispute resolution centre. As Sir Geoffrey put it: “the prizes will go to the bold, not to those reluctant to change”. Now is the time to prepare.

This article is part 1 in a three-part series exploring ESG and employment law, this article focuses on the ‘Environmental’ element. In parts 2 and 3 of the series, we look at the ‘Social’ and ‘Governance’ aspects.

What is ESG and why should you care about it?

‘ESG’ (environmental, social and governance) serves as a framework that helps stakeholders analyse the sustainability of a company and its operations. Whilst ESG was originally a focus for investors to measure a company’s sustainability, wider stakeholders are becoming more engaged and interested in ESG as a measure of a company and its aims. Investors, employees, consumers and regulators have an increased expectation that businesses run their operations responsibly and sustainably.

ESG helps to shine a light on the ethics of a business to the external world, and having a strong ESG agenda can increase productivity and profitability and enhance a company’s reputation. As we explore in further detail below, research suggests that – particularly for Gen Z and millennial employees – a company’s approach to environmental and social issues plays a key part in attracting and retaining talent and there is increasingly an expectation from employees that their company will take action relating to such issues. Given the competitive job market and the drive to retain top talent, ESG should be high on the agenda.

This first article in our three-part series will focus on the ‘environmental’ element of ESG.

How is employment law related to your company’s ESG credentials?

Part 1: The ‘E’

The environmental aspect measures an organisation’s impact on the natural environment. It accounts for things such as the company’s carbon footprint, its use of natural resources, its waste, and the impact of its operations on the physical environment.

Many organisations are actively working to reduce their carbon emissions and honing their operations to reduce environmental impact. Whilst there’s no doubt that a focus on the environmental aspects of a business will involve looking at its physical sites and operations, there is a less-obvious employment angle to this too, which can have a significant part to play.

Employers are being subjected to increased regulation regarding their environmental habits. The government has imposed requirements for certain large companies and LLPs to make mandatory climate-related financial disclosures in their annual reports. The Competition and Markets Authority (CMA) has launched a number of investigations into ‘greenwashing’ made by fashion brands in the UK. Indeed, other regulators are also taking action: the Financial Conduct Authority has sought to tackle ‘greenwashing’ and other false sustainability claims by setting out proposals for new sustainability disclosure requirements in relation to investment products – these are just a few examples.

However, how does this additional regulation relate to employment and HR issues? Well, first, the law on whistleblowing protects workers who raise certain concerns, for example concerns regarding their employer damaging the environment, breaching their legal duties (i.e. environmental or regulatory in this context) or deliberately concealing any of those matters. Provided a whistleblower meets the statutory test for raising a ‘protected disclosure’, they cannot be subject to any detriment or dismissed for making that disclosure.

It’s likely that environmental whistleblowing will become an increasingly prevalent concept with which employers have to grapple. A 2022 Deloitte survey suggests that Gen Z’s and millennials are extremely concerned about the climate crisis and want their employers to do more to fight climate change, and indeed many of them have put pressure on their employers to take action. As such, this is an area which will need to be on an employer’s radar and work may need to be done to ensure its whistleblowing policy is fit for purpose.

It is easy to see how an employee who has genuine concerns about their employer’s environmental practices or sustainability claims may be afraid to speak out for fear of reprisals. However, having an effective whistleblowing policy, as well as fostering a workplace where employees feel empowered to challenge and raise concerns internally, can allow businesses to address these concerns at an earlier stage, rather than wait for them to be exposed by the public or regulators and be subject to intense public scrutiny. The negative exposure generated by allegations of greenwashing can have a hugely detrimental impact on reputation and, ultimately, share price/company value. As such, it makes good business sense to ensure that internal policies explicitly cover issues around environmental damage and breaches of environmental or regulatory duties. For certain firms in the financial services sector, there’s a regulatory requirement to appoint a senior manager or director (often a non-executive director) as a ‘whistleblowers’ champion’ to oversee the effectiveness of internal policies and prepare an annual report to the board. Indeed, many companies elect to appoint a whistleblowing champion, even if there is no regulatory requirement, as a matter of good governance and to ensure that an individual has executive responsibility to oversee the integrity and effectiveness of internal policies. For employers who are particularly climate conscious, policies could actively encourage employees to speak up about climate issues and hold the company to account. In addition, tailored training to all staff – and more detailed, targeted training to those in management positions – should also be delivered so that they can identify what whistleblowing looks like and how to respond appropriately.

Another overlap between employment law and the environment can be seen in discrimination legislation. Under the Equality Act 2010, individuals such as job applicants, employees and workers are protected against discrimination, harassment and victimisation relating to their religious or philosophical belief. What counts as a ‘philosophical belief’ has been the subject of intense debate in recent years, but it is possible that a strong belief in protecting the environment and tackling climate change could potentially be seen as a protected ‘philosophical belief’.

There is a stringent test to be met: to summarise briefly, the belief must be genuinely held and must be a belief (not just an opinion or viewpoint) as to a weighty and substantial aspect of human life, have a certain level of cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society. One can certainly see how a belief in climate change could meet these criteria. Indeed, in a case decided prior to the Equality Act 2010, it was found that an individual’s belief in man-made climate change, and the alleged resulting moral imperatives, was capable of being a philosophical belief for the purpose of the Regulations at the time. In a more recent case under the Equality Act 2010, an Employment Tribunal has found that ‘ethical veganism’ can amount to a protected philosophical belief.

Businesses therefore need to be alert to the fact that staff who are particularly climate conscious may actually be protected under discrimination legislation. To protect the company and reduce legal risk here, employers should be providing staff with training on the Equality Act duties, as well as their internal equality policy, to highlight the wide definition of ‘philosophical beliefs’ and ensure managers are able to deal appropriately with climate-conscious employees and avoid discriminating against them.

Although the legislation mentioned above offers some legal protection to workers in relation to environmental issues, it is encouraging to see a number of employers starting to embrace climate conscious policies and practices, perhaps due to a need to attract and retain staff who are seeking a values-driven employer. Many companies are now taking steps to reduce the impact of their operations on the environment through a range of policies, such as:

• Sustainable commuting – offering incentives or schemes to entice staff to walk or cycle to work or use public transport. This could also encourage the use of homeworking to avoid the commute, but require home working practices to be sustainable (e.g., by prohibiting single-use office supplies, encouraging the use of renewable energy etc.).
• Expenses – where travel is necessary, encouraging staff to use more sustainable methods of travel by only reimbursing certain types of expenses and/or requiring an employee to get prior approval before booking travel arrangements.
• Disciplinary rules including environmental misconduct – if a company has a net zero commitment or a strong environmental ethos, it may wish to include specific examples of environmental misconduct matters which will be dealt with under its disciplinary policy. For example, a disciplinary policy could expressly make it an offence for an employee to act in a manner which is damaging to the company’s reputation as an environmentally conscious business.
• Training – offering environmental and sustainability training programmes could help raise awareness and encourage organisation-wide change.
• Career break – allowing staff paid or unpaid time off work for a short period to volunteer with environmental organisations. A ‘light touch’ version of this may be giving employees a paid day off work to volunteer with a climate change or environmental charity.
• Remuneration linked to ESG outcomes – linking bonuses or variable income to environmental goals such as lowering carbon emissions can be an effective tool to incentivise executives and reward long term, sustainable decision-making. Over half of FTSE 100 companies now include ESG measures as part of their executive incentive plans to drive change and encourage long-term, sustainable decision making.

Although it is easy to think of this as an ‘HR’ issue, organisations who truly want to see organisation-wide, cultural change, will need to drive this from the top. Whilst HR can certainly play a key part in strategy and implementation, senior leaders will need to embrace the company’s ESG agenda and take ownership of the vision to help deliver genuine change. While the policies listed above are a very helpful starting point, this must be backed up by action to demonstrate a genuine commitment to environmental change and sustainability.

To discuss any of the issues raised in this series of articles, or for any other employment related queries, please do not hesitate to contact the Employment team.

Following the recent finale of Dragons’ Den 20^th series, it seems this is the ideal opportunity to provide a quick review of the highs, lows and lessons to be learned by other budding entrepreneurs regarding the need to protect their intellectual property at all times but especially when looking to expand a business.

The ability to demonstrate that you have considered your intellectual property rights as part of your overall business strategy is vital to showing investors that your business is worth investment. Investors will, at the very least, expect that your name is protected as a registered trade mark as a marker for a well-run business. They will be very interested to know whether you have existing patent protection, or are currently in the application process, as well as whether you have any registered design rights which will allow your business to grow.

As well as aiding business growth, properly protecting your intellectual property will help protect your business from competitors who may otherwise be able to copy your products, or even use similar branding. On the flip side, investors want to know that your business does not infringe the rights of others and so showing that you have considered IP rights at an early stage will always impress investors (whether in the Den or otherwise!).

So, what are some of the key IP considerations?

Do your branding homework

Before developing your brand, it is worthwhile checking if a similar brand name/logo is being used by a third party. There are a variety of free online sources that you can use to confirm this information yourself, such as Companies House and online trade mark registries (at the UK Intellectual Property Office (UKIPO), and further afield at TMView (tmdn.org) depending on where your target market is). As the business grows you may also want to obtain official clearance searches (we can help you with this) that you can rely on more than your own searches.

When carrying out these searches it is best to check not just the exact brand but also similar names/logos as the existence of similar brands can lead to risk of claims that your name infringes pre‑existing rights, preventing you from either obtaining trade mark protection or worse still forcing you to change your name.

You should also check if your preferred country domain name is available, to avoid having to purchase it from the owner (at a high cost) later on (although if you are happy to use something other than a .com or .co.uk, you should be able to find a free domain).

Once you know your name is free to use, register it as a trade mark (see below).

So, what if you find in this stage that other businesses have already registered what would have been your trade mark? You could enter a co-existence agreement with the third party to share the trade mark and this will allow you to use the mark, but does limit future growth as the Dragons pointed out to one unfortunate activewear entrepreneur. Therefore, it is probably time to think up a new name.

Create a company and website

If you have decided to operate as an incorporated company in the UK then you need to incorporate your company at Companies House. We can assist you with this.

You should purchase/register domain names and variants on the name – this is something you should be able to do easily. Provided the domain names are not already held by a third party through a recognised domain name registrar then this is easy and cheap.

This tech entrepreneur was unable to answer if he owned the name domain for his business which did lead to his confidence being shaken, however he was able to salvage the deal and secure investment.

Keep it confidential

When it comes to intellectual property, confidentiality isn’t just a good idea – it is essential! If you have developed a new product (including software) or an innovative process, you may be able to protect it with a patent. If you do not maintain confidentiality you risk losing the ability to patent it. Please ask us if you need a non-disclosure agreement to protect your position. The importance of patent protection is clear from this plant-based beauty and skin care entrepreneur who had already been granted patent protection for her product and secured an investment from two of the Dragons.

However, in certain fields, such as software development or food manufacture, if you can keep your information secret then that is the best protection. Nobody knows how the Google search engine algorithm works or the recipe for Coca Cola because both are kept confidential. Remember that while patents are powerful tools, the registration process necessarily discloses everything about the idea. Whichever way is best for your business, remember trade secrets are a vital part of your business’ value as “intangible assets”.

Register trade marks

Once you have settled on a unique brand, you will want to keep ensure that you are not confused with other businesses. You can register trade marks for a broad range of identifiers, including not only words and logos but also sounds, smells and even gifs. As long as what you want to register is not descriptive of your business and can be clearly and precisely defined, it can be registered as a trade mark. As such, as a minimum you should register your main trading name, company names, domain names and key product names (where different) as well as any logos.

It is also important to create a brand which is unique and eye-catching so that it can be registered as a trade mark, as the Dragon’s advised this micro-camper entrepreneur. This highlights the importance of carefully reviewing existing trade marks as noted above before you develop your branding. While in the UK, you may gain automatic IP rights without registration in certain names and logos, registered rights provide much stronger protection against third parties – better you own the trade mark than someone else! We recommend you ask us about registering trade marks. This is also a good opportunity to think about your target market, as a trade mark in the UK would not protect your business in Europe or further afield and we can help with this too.

Protecting your products/services

As well as trade marks, you can register other types of intellectual property including patents and design rights.

You should not forget copyright and rights in databases. Copyright arises automatically when you create something new that is your own “intellectual creation”. Ed Sheeran has been all over the news with his various legal cases which have challenged the “originality” of his work and he was able to show that he did not copy anyone. As an entrepreneur, copyright will protect the design of your website, the software you write, the design drawings for your products, your photographs and many other things provided you have not copied them from somewhere else. Database rights automatically protect your customer lists and marketing database.

Once you have an innovative technical solution or design, you should try (as far as possible) to prevent others from benefiting from your hard work.

Patents can be key in the manufacturing industry in order to protect various inventions as well as the production processes. When looking at your intellectual property strategy you should consider where your current and future target markets are and whether intellectual property protection is available and appropriate. As with trade marks, securing protection in one country does not protect your product globally. Correctly identifying the potential for your product, and protecting this potential, makes a business very attractive to investors. This was shown by two innovative entrepreneurs who went into the den with a granted UK patent and various international patents pending for their sunscreen applicator for kids.

There is a distinction between a “patent pending” and a granted patent, the latter having been approved by a patent examiner and providing the creator with security over their product and allowing them to claim against third parties who infringe on the patent. A patent pending, on the other hand, is strictly a deterrent on the basis that the patent may be granted and after this the creator would be able to claim. Until granted, it does not provide the right to claim itself.

You may also want to protect designs, particularly if you work in fashion similar to this handbag entrepreneur. Novel designs automatically benefit from protection of the shape and configuration of the product as an unregistered design. However, you can also register the design to benefit from a longer exclusive monopoly right. If you would like advice on how to best protect your design, please contact us.

Clean up ownership of IP

As with all property, intellectual property must have an owner and investors will want to ensure that the company in which they are investing owns all of its assets or has clear licences to use them. If you have started a limited company, your creations may be owned by you personally and these will need to be assigned formally or licensed to the company. As your business grows and you begin to engage others to help, you must include assignment (or licence) provisions in your employment, consultancy, design, software and other contracts so that all the intellectual property rights can be used by the company. Perhaps more importantly, make sure that all the founders transfer their intellectual property rights to the company. There are far too many tales of founders falling out and walking away from a business with the IP rights which underpin the business.

It is important that everything detailing your ownership is carefully documented. One father and son entrepreneur-ing duo in the Den particularly stood out here with their football themed boardgame. Having secured licences from a variety of professional football clubs, they were able to use the clubs’ branding in their board game without infringing the various clubs’ rights, helping obtain offers from two of the Dragons.

Final matters

As a new business, there are a million things to think of (and pay for). So where should you direct your limited resources?

It is free to keep things confidential and copyright arises automatically. Trade marks and designs are cheap to register (a few hundred pounds for UK protection) but what if you need to enforce your rights against others. Many a “David” has been struck down by “Goliath”, but a good business insurance product can enable you to enforce your rights or protect you from unwarranted threats. We advise asking your insurance broker about IP coverage which is sometimes ‘free’ with a good policy.

Finally, IP Rights are “property”. They can be used as security for loans and other investment. Therefore, whether you are looking for funding or looking for an exit, the bigger your portfolio of IP rights, the more chance you have of securing the true value for your business.

Dragons don’t give away their money but when a business has good IP, you can tame the beasts and get to the gold they guard.

Iain Connor is a Partner in Michelmores’ intellectual property team.

Michelmores run award-winning programmes for tech businesses and investors, including MiVentures and the MAINStream angel investor network.

Michelmores is proud to announce that it has raised a total of £60,000 in aid of its charity partner the Charlie Waller Trust, over a three-year period.

Colleagues from across the Firm’s five offices have been involved in a range of fundraising and volunteering opportunities, including the annual Michelmores Charity Run, Three Peaks challenges, London Marathon, Walks for Wellbeing, and a number of other events and initiatives.

The money raised by Michelmores has directly supported the delivery of mental health training in schools and colleges in the UK. During 2022, the charity delivered over 320 sessions to over 20,000 school students, while over 13,000 young people in higher education visited its e-learning portals which provide essential mental health resources.

The Charlie Waller Trust was set up by the Waller family in 1997 after Charlie tragically took his own life aged 28. The Trust provides mental health training, resources and consultancy with a focus on children and young people.

Eve Loughrey, Associate solicitor at Michelmores, who ran the 2023 London Marathon and raised over £3,800 in aid of the Charlie Waler Trust said:

“As someone who struggled with mental health in the past, it felt great to be able to help fundraise for an organisation that is dedicated to mental health training. I find exercise is often a release for me for when I am feeling down, so it was the perfect opportunity to give something back and doing something that can often help me.

“The Charlie Waller Trust has been a fantastic charity partner for the Firm and I am proud to have raised funds for such an important cause.”

Claire Stafford, CEO of the Charlie Waller Trust said:

“Thank you to everyone at Michelmores for your support throughout our partnership. With your fundraising we have been able to continue to provide the training and resources that so many young people rely upon and we have enjoyed the opportunities to work with the Michelmores team in a number of ways over the last three years”.

As part of the partnership, the Charlie Waller Trust has delivered a number of training sessions to the Firm, as well as provides a range of resources and guidance to support Michelmores’ wellbeing initiatives.

For more information on the Charlie Waller Trust, visit charliewaller.org.