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.

Throughout the second half of the financial year we experienced a loss of momentum in the UK housebuilding industry. Here, we explore some of the key challenges which the sector has faced up to Q4 and which are likely to hangover into FY 23/24. We  also pick up on some emerging themes and reasons for optimism moving forward.

1. Increased mortgage rates, falling house prices and decline in market activity

The Bank of England increased its base rate on 23 March from 4% to 4.25%. Higher mortgage rates together with the cost-of-living crisis, is predicted to restrict affordability further and this has translated into reduced sales rates in Q’s 3 and 4. In Q3Savills forecasted a 10% fall in the UK average house price and, whilst there will be distinctions between regions, a rates hike coupled with the demise of Help to Buy does not appear to suggest that buyers (particularly first-time buyers) will be well placed to capitalise on any decrease in prices.

Despite this, some experts have identified an emerging distinction between the newbuild and second-hand market: with the former expected to out-perform the latter. Savills has reported how a similar trend emerged following the financial crisis in 2009, because homeowners were reluctant to sell their properties in an illiquid market. Certainly, the newbuild market has the potential to offer credible opportunities to first-time buyers provided that innovative alternatives to Help to Buy can be found and gridlock in the planning system can be overcome (see below).

2. Local plans, Gove, and a general election

Housebuilding has become one of the hottest of all political hot-potatoes this year. In December, the Government unquestionably took a backwards step when it watered down its 300,000 p/a delivery target. Since that announcement we have seen many authorities relent on new Local Plans and this has left so many in the industry scratching their heads.

Michael Gove has responded to his December announcement by declaring that the UK’s housing model is broken and that more homes are desperately needed. Meanwhile, Labour has pledged to increase home ownership to 70%. Whilst that offers some hope it is perhaps not unsurprising that a pro-build rhetoric from both major parties will emerge as we get closer to a general election. At present we look to progressive authorities (such as Calderdale which last month resolved to adopt a new local plan amidst the post-Gove pressure) to identify and promote suitable and deliverable sites to tackle the UK’s housing crisis.

3. Materials and labour market

The industry has experienced a significant increase in the cost of building materials and a shortage of skilled labour. These issues are a cause of concern for housebuilders and are likely to be particularly problematic where they are already contractually committed to a purchase. Financial appraisals conducted by housebuilders prior to Q2, may now be inaccurate and subsequently we are seeing deals either being re-negotiated or going abortive.

Expectations are for the labour crisis to endure throughout 2023 and to continue into 2024. It is reported that the construction industry is likely to see more skilled workers retire in upcoming years than any other industry. Fortunately, however, research from BuildPartner indicates that material prices are stabilising, easing some of the financial strain on housebuilders.

4. Nutrient Neutrality/Biodiversity Net Gain

The housebuilding industry continues to battle with the nutrient neutrality crisis and subsequently the implementation of many schemes has been stalled whilst mitigation strategies are agreed at a national and local level. It is estimated that 120,000 homes are currently being delayed across 74 local authorities as a direct result of neutrality issues. However, Local Authorities are starting to emerge with strategies for unlocking these sites. For example, South Somerset District Council recently announced a new nutrient credit model which will allow developers to purchase credits in order to offset their proposed schemes.

The requirement for new developments to deliver a 10% biodiversity net gain is scheduled to become mandatory in November 2023. In previous publications we have highlighted the challenges that this will bring to the industry (from a delivery to a viability perspective). Whilst we await further developments from Local Planning Authorities in the delivery of a statutory credit scheme, the private BNG ‘unit’ market is already flourishing with a range of providers ready to sell units to developers in order to offset any gains which cannot be delivered on-site.

5. A volatile land market

The effects of the widespread uncertainty in residential sales has unsurprisingly had a knock on effect when it comes to land acquisition. From Q2 onwards we have seen many developers step-back from new acquisitions. That may well continue into FY 23/24 and have a stabilising effect on land values which had risen dramatically in line with the house price boom post-lockdown.

Ultimately all developers need land to deliver new units and this uncertainty ought not to hang around for as long as many had feared. An emerging trend within the industry has seen greater use of joint-ventures and partnership models as a way of de-risking the development process for many in the market. It appears likely that this trend will continue through FY 23/24.

6. Alternatives to Help to Buy, Build to Rent, and assisted move packages

There are several alternatives to the Help To Buy Scheme which could reduce the impact of its demise. Examples include the Deposit Unlock Scheme, Deposit Boost, Home Reach and First Homes, which, together with the extension to the temporary reduction in stamp duty (cuts to stamp duty will remain in place for the next two years) have the potential to encourage activity in the new build market, particularly for first-time buyers.

The cost-of-living crisis is also likely to influence buyers to look at smaller and more energy efficient properties which has the clear potential to boost activity in the new build market. House builders who prioritise truly sustainable developments with high energy-efficiency credentials appear to be best-placed to capitalise on this new trend in buyer demand.

As much as the current economic climate could result in levels of homeownership becoming stagnant in the next FY, this is potentially good news for those operating in the build-to-rent sector. In Q3 the British Property Federation reported a 15% level of annual growth for the sector underpinned by a 93% rise in private renting since the early 2000’s. It should be noted that BTR schemes will have most impact in communities where people can live and work in the same place and so may not be suitable for more rural regions.

The housebuilding industry is facing an unprecedented range of challenges from all angles. Whilst this will continue in FY 23/24 the industry has demonstrated its robustness on many previous occasions and can do so again. We hope to see more progress in nutrient mitigation strategies and in the delivery of BNG, greater support, investment and reward for sustainable development and a greater appetite for solving the UK’s housing crisis at a national and local political level.

Greenwashing in the agricultural sector gets real

Lawyers acting for River Action, have put out a press release on 17 April 2023 saying they have filed three complaints with the Advertising Standards Authority about the Red Tractor’s advertising. This follows an article in the Times on 3 April 2023 quoting data from a 2020 Environment Agency report in which the Times suggests that Red Tractor farms are more likely to pollute the environment than other farms.

Why this matters

Founded in 2000, the Red Tractor scheme promotes itself as a “world-leading food chain assurance scheme that underpins the high standards of British food & drink“. The Assured Food Standard company states that its scheme offers the Red Tractor logo which is “the flagship logo of British food and farming, providing assurance at every stage of the production process, from farm to pack“.

If River Action’s challenge succeeds, the ASA’s usual sanction means that the use of the Red Tractor logo could be severely curtailed.

Detail

River Action’s complaint is based on the fact that it says there is evidence that many Red Tractor-assured farms do not meet the environmental standard promoted by the scheme. River Action relies on the same Environment Agency report which it says found that assured farms were responsible for agricultural pollution. River Action’s lawyers’ press release quotes sections of the Agency’s report and states that assured “farms were responsible for 62% of category 1 and 2 incidents and 56% of category 3 incidents. Significantly, the Report concluded that RT farms were less compliant (26%) with [Environment Agency] inspections compared to non-RT farms (19%)“.

The press release goes on to say that this “conclusion is consistent with those of a previous [Environment Agency] report of a case study carried out by the [Environment Agency] between 2016 and 2022 in North Devon. The [Environment Agency] found that of 101 farms visited, 87% were non-compliant with environmental regulations despite all being Red Tractor members“.

The ASA has jurisdiction to rule on all advertising in the UK including traditional newspaper and television adverts as well as social media and the content on companies’ own websites. Accordingly, the complaints to the ASA are based on the fact that River Action believes that the claims on Red Tractor’s website, YouTube channel and its most recent TV advert are misleading to consumers. If the ASA upholds the complaints its decision will mean that Red Tractors’ claims cannot be repeated in their current form.

What next

Given Red Tractor’s strong rebuttal on its website of the Times article which it says is “inaccurate, misleading and a disservice to Red Tractor dairy farmers” we can expect a strong defence of the River Action ASA complaints. Red Tractor says that the data in the Environment Agency’s report “actually supports the opposite conclusion” to the one drawn by the Times’ article. Given that River Action’s ASA complaints also rely on the Environment Agency’s report, we can expect Red Tractor to argue that its claims are valid and that use of the logo is appropriate in all circumstances as promoting the higher standards which are at the heart of the Red Tractor scheme’s aims.

We expect the ASA to rule on this in summer 2023 and it will no doubt be a highly anticipated decision.

Comment

This could be a big moment for the agricultural sector and for environmental claims more generally. If the ASA rules that Red Tractor’s claims cannot be substantiated and that the use of the Red Tractor logo is inappropriate given that the producers are not adhering to the standards the Red Tractor logo presents then this could flow all the way up the supply chain.

It is this “house of cards” which is the reason why this complaint to the ASA has wider significance. Even though all advertisers are supposed to hold relevant and contemporaneous substantiation for all the advertising claims they make, many companies rely on information from suppliers below them in the supply chain. Therefore, if River Action’s complaints are upheld and the ASA rules against Red Tractor, supermarkets and other retailers could start to question whether they should be promoting the Red Tractor logo in their advertising for fear of an accusation that they are “greenwashing”.

A salutary fairy tale

Read on if you want a graphic example to understand what copyright protects.

The Dragons – Fred vs Edgar

For people of a certain age, the song “Puff the Magic Dragon” has a particular resonance. For others, it is Harry Potter fighting dragons in the Tri-Wizards’ Cup or Hiccup taming his dragon, Toothless, in Cressida Cowell’s “How to Train Your Dragon”. The point is that for every generation since St George did his act of slaying (and probably before), dragons have been a part of our culture and have been portrayed innumerable times in art and literature.

Sometimes the creatures are malevolent and other times benign but almost always misunderstood. Clearly the claimant, Fay Evans, misunderstood the fundamentals of copyright when her dragon, Fred, took on John Lewis over its 2019 Christmas ad which featured, Excitable Edgar, the lovable but fire happy dragon.

Copyright law – the basics

Copyright is the “Ronseal” of intellectual property rights; it “does exactly what it says on the tin”. In simple terms it stops people copying. The complexity comes from the fact that it only stops the copying of the “expression of the idea” and not the idea itself. In practice, this means that you need to be able to show that a defendant has reproduced a substantial part of the copyright work be that a picture, photograph, piece of literature, etc.

Accordingly, provided you have a work which is your own “intellectual creation” that is “identifiable with sufficient precision and objectivity” then it will be protected by copyright such that you have the exclusive right to prevent others copying that work. However, what copyright does not stop is someone taking an idea or having the same idea independently.

The facts of the case

In Fay Evans -v- (1) John Lewis plc; and (2) DBB UK Limited, Ms Evans accused John Lewis and its ad agency, DBB, of taking the essential characteristics of her lonely, dragon character, “Fred the Fire-sneezing Dragon”. In the debut book of the same title, Fred, got into all manner of scrapes because his sneezes were accompanied by fire leading him to be ostracised until he eventually saved the day when he was able to cook his classmates’ lunch when the school oven failed.    

For those who can remember John Lewis’ 2019 Christmas campaign, you will recall that Excitable Edgar was an adorable young dragon who was “simply so excited about Christmas that he [couldn’t] control the flames from his mouth” and he burnt everything he encountered leading him to be sad and lonely. This was painful for everyone because all Edgar wanted to do was get involved in all the festive celebrations.  Eventually, Edgar came to the rescue by using his fire to light the streetlights, clear ice from a path and put a flame a top a Christmas pudding.

Dragon hide and snake oil

At a level of abstraction, there are similarities between Fred, the fire‑sneezing dragon, and Excitable Edgar. However, this is snake oil – the similarities were worthless to Ms Evans in her attempt to prove copyright infringement.

First, many of the “copied” elements could be attributed to hundred of stories about dragons or other characters from literature. They are timeless attributes given to characters who had to find their purpose before they could be understood and welcomed into society.

Second, there was no evidence of copying. The book, “Fred the fire-sneezing dragon”, sold in very small numbers (only 120 or so copies being purchased from Amazon or on the Claimant’s website), mainly in primary schools in the North West of England where there was no evidence that anyone involved in the creation of the 2019 John Lewis advert or Excitable Edgar lived.

Third, DBB put forward credible evidence of independent creation. Excitable Edgar was himself a work of “intellectual creation” who was “identifiable with sufficient precision and objectivity” and not the result of any copying. Any similarities were purely coincidental.

Fourth, the preparatory steps for the John Lewis advert began in 2016 whereas Fred, the fire‑sneezing dragon, was published in 2017. Therefore, even though the final creative was not used until Christmas 2019, the judge was satisfied that DBB did not have access to Ms Evans’ work.

Conclusion – smoke without fire

Since the beginning the story telling, dragons have breathed fire with all manner of consequences but in a copyright claim this does not amount to evidence of copying. Therefore, while it might be gut wrenching to see another work that appears very similar to your own copyright work, do not be tempted to make accusations of copyright infringement unless you are able to prove that the defendant had access to the original work. The lessons that can be taken from this case are universal and all too common and simply show that independent creation can lead to similar results; smoke but without the fire.

When considering the opportunities for the development of land, one of the first matters to check is whether the land abuts a public highway at its intended points for access and servicing.

Unregistered land in unknown ownership intervening a registered title boundary of land and the public highway is a surprisingly common issue.

Here are a few things a landowner may wish to consider to address this issue when preparing land for sale:

1. Are you aware of any gaps?

   Check that your title plan accurately reflects the boundaries “on the ground”. A developer will undertake thorough title investigations and searches to establish ownership of land and the status of roads. Where possible, overlay the title plan with a highways plan to make an accurate assessment. Pre-empting and actioning any issues now will make for a simpler and quicker sale.

2. Is the title plan correct?

   The position of the title boundary will depend on the terms of the relevant pre-registration documents, and the Land Registry will complete a first registration without making further detailed enquiries as to the precise location of the boundaries. Therefore, a title plan reflects only what the Land Registry concludes to be “a reasonable interpretation of the land in the pre-registration deeds in relation to the detail on Ordnance Survey mapping” (Land Registry Practice Guide 40). If you think an error has been made in the mapping, it may be possible to persuade the Land Registry to correct the mistake. However, it is usual that a Land Registry plan will show only a “general boundary” and a general boundary does not determine the exact line.

3. Are the highways records correct?

   It may be possible to invite the highways authority to inspect a potential “gap”, and to amend their records to confirm the designation of public highway right up to the title boundary.

4. In the event of development of the land, could the access be re-designed so that roads and services do not need to pass over any gap?

   This is likely to depend on a variety of technical matters including the topography of the land and cost.

5. Have you been in exclusive occupation of any gap between the title boundary and the public highway for at least 12 years?

   It may be possible to make an application to the Land Registry for adverse possession, depending on available evidence, to obtain a possessory title. The question then will be whether a possessory title to part of the land will be sufficient for a developer, and it is likely that this would need to be combined with a title indemnity insurance policy. Land Registry applications can take some time to process, so it’s a good idea to submit any relevant applications at an early stage.

6. Have adequate rights of way over the gap been acquired over time?

   Acquiring rights by long use is complex and will depend on a variety of factors including how long the right of way has been exercised and whether it has been without interference. If an easement is established, developers are likely to question whether development would constitute an excessive use of it. If you think you might be relying on rights established over time, then consider taking further advice on this.

7. Is title indemnity insurance available?

   It may be possible to obtain an insurance policy to cover the risk of a third party claiming an interest in the gap. A policy often provides cover in respect of the costs of obtaining a private right of way over the gap, obtaining an alternative access, acquiring the gap, or pursuing a Section 228 procedure (see below). It may also cover the difference in market value with or without the defect. However, insurers often prefer insurance to be put on risk following the outcome of a planning decision, as this often reveals any third-party objections. The insurer will also look at the gross development value (‘GDV’) of the land when calculating the premium. Therefore, the likely GDV and whether insurance is sought pre or post planning will impact cost. Careful consideration should also be given to actions which might invalidate an insurance policy, which means other possible solutions (such as contacting the Land Registry or the highways authority) then become excluded.

8. Do one of the following presumptions apply?

   These are helpful and worth considering, but are rebuttable:

• Ad medium filum. This presumption states that the boundary of land abutting a roadway extends up to the middle point of the road. This will apply to the subsoil if the road is highway maintainable at public expense.
• Hedge to hedge. It is presumed that a highway extends to the whole width of the space between fences or hedges on either side of the highway and is not limited to the made-up part of the roadway.
• Hedge to ditch. Where two properties are divided by a hedge and a ditch or a ditch and a bank, there is a presumption that the boundary is along the opposite edge of the ditch from the hedge or bank. This is based on the principle that an owner, standing on his boundary looking inward, dug his drainage ditch within his boundary, threw up the soil on his home side, and then planted a hedge on the mound.

9. Could an application be made in the future for adoption as public highway via Section 228 of the Highways Act 1980?

   This procedure may be applied where street works are undertaken and the highway authority gives notice that the road is to become adopted highway. If a third-party landowner objects within prescribed timescales, the highway authority can still apply to the court for an order declaring the street as adopted highway. This power is useful where there is no known landowner and a Section 38 process cannot be used.  There is a commercial risk associated with this solution as the procedure would only be started at a later date when works had been undertaken. There is also no guarantee that the highways authority would co-operate and agree to the vesting, although it may be possible to contact the highways authority to seek an indication as to whether they would cooperate with a Section 228.

This is by no means an exhaustive list. Consider whether it would be helpful to seek legal advice early on in any transaction to assist in preparing land for sale and development.