This article was first published in Private Client Adviser on 19 August 2015 and is reproduced by kind permission.

Is monogamy dead? The founder of Ashley Madison certainly thinks so. But is finding that your spouse has an account on a website dedicated to facilitating extramarital affairs enough to get a divorce?

‘Life is short. Have an affair.’ This is easily one of the most depressing slogans ever utilised, no? Hardly a surprise then, that there hasn’t been a great deal of sympathy flying about for the ‘morally corrupt’ members of Ashley Madison over the past few weeks, since the hacker group, Impact Team, threatened to release their personal details and thus expose their adulterous behaviour.

Ashley Madison claims to have 37 million members worldwide, statistics which have been questioned (and in some instances disproved) over recent weeks as being somewhat exaggerated.

Monogamy is dead

Inflation of membership figures may be the site’s own attempt to assuage the consciences of its existing customers, and simultaneously attract prospective ones to join the party. Certainly such figures would seem to indicate that everyone is cheating on their spouse, thus substantiating the website founder’s claim that ‘monogamy is dead’.

Some studies on this subject have suggested that 60 per cent of men and 45 per cent of women will be unfaithful at some point in their marriages. These are not insignificant numbers and are fairly dispiriting even when you take into account the range of possibilities in between the one-off lapse of judgment, and the full blown ‘double life’ affair.

I am sure most people would assume that as a family solicitor, I should be rubbing my hands in merciless and unadulterated glee (tenuous pun intended) at the prospect of 2.4 million potential divorces looming on the horizon, if the hackers follow through with their threats – an estimate based on Ashley Madison’s claim of facilitating the extra-marital affairs of 1.2 million people in the UK.

I can’t say the link didn’t cross my mind, but just in the way I am hopeful that medical professionals don’t pray for terrible accidents, I derive no satisfaction from hearing about the end of a marriage, however it comes about.

Instead, I like to think of my role as one that is necessary as a result of the sad realities associated with the foibles of human nature; supporting people through the aftermath rather than taking pleasure in the event.

I have said before that I believe one of the most difficult aspects of being a family solicitor is having to manage your clients’ expectations in terms of how they think the law should operate, versus how it actually applies to their situation. This is most difficult when one party to a divorce feels especially morally wronged.

When using adultery as a reason for obtaining a divorce, the court discourages the naming of the co-respondent in proceedings, something that a freshly-jilted party is often very keen to do.

Understandably, people also often find it difficult to grasp the fact that not only is the court rarely interested in an exercise of ‘who did what to whom’, but that your spouse’s immoral behaviour does not alter the outcome of financial proceedings on divorce in your favour, except in very exceptional circumstances (i.e. attempted murder).

Enough evidence for a divorce?

An interesting question that came out of the Ashley Madison headlines for me, was whether discovering your spouse’s details were registered to the site would be substantive enough evidence to obtain a divorce on the basis of their adultery, which is a fairly high threshold to cross.

My feeling would be that it would not suffice, because unless people possess categorical evidence of adultery having taken place, i.e. a wife giving birth to a child that is not her husband’s or an admission from a spouse, then it cannot be easily relied on as a basis for obtaining a divorce.

Rather, people who can’t provide the requisite evidence will instead rely on the fact of their spouse’s ‘unreasonable behaviour’, citing belief/knowledge of an ‘improper association’ with a third party.

Interestingly a tangential issue to this has received a fair amount of media attention recently, by virtue of a case where a woman discovered her husband had had a number of sexual relationships with other men, and was outraged to discover that this did not fall within the remit of adulterous behaviour for the purposes of obtaining a divorce. Another good example of when the law does not tally with clients’ personal expectations.

Ashley Madison argues that it doesn’t encourage adulterous behaviour, but instead provides ‘a safe alternative’ to having an affair close to home that would be more easily discovered (oh the irony).

I would argue that the safe alternative to the ultimate betrayal of your trusting spouse would be to address your own issues, the problems in your marriage and failing all else, calling time on what is clearly a relationship you are not and cannot invest in for whatever reason.

It is true that adultery is hardly a new phenomenon, but although sites like Ashley Madison may not actually force someone’s hand, or even at best, do anything more than cater for something which would have happened in any event, they undeniably do encourage a self-serving attitude that makes marriage an entirely pointless exercise.

Admittedly the tagline, ‘Life is short. Don’t be in a relationship if you can’t be faithful’, isn’t very catchy and I doubt it would attract the supposed following Ashley Madison has, but even in my line of work, I am not ready to give up on monogamy and the possibility of enduring and rewarding relationships just yet.

Amidst the battering that the renewable energy industry has been taking in recent months there is one technology which seems to have been hit harder than others. Arguably the cheapest source of renewable power, wind has faced subsidy cuts, retrospective changes to grandfathering provisions and significant changes to planning policy – which combine to undermine the profitability and stability of the technology.

One of the most aggressive changes to wind as a technology is the proposed removal under the (Energy Bill) of wind turbine developments of over 50 megawatts (MW) from the list of Nationally Significant Infrastructure Projects (NSIPs) that fall to be determined through the development consent order process. NSIP applications benefit from a front loaded and fast(ish) track determination process, which exists alongside the well establish determination procedures for ‘smaller’ applications which require planning permission. NSIPs are handled by the Planning Inspectorate, with the final determination being made by the Secretary of State (following an inquiry held by Inspectors). Final decisions are made with reference to the national policy statements on energy and other matters relevant to the local area including local plans.

The proposals would remove onshore wind from the NSIP scheme, and place decision making back in the hands of the local authority. The new policy, as stated in a recent Ministerial Statement, is that local planning authorities should only grant planning permission for wind developments where:

• The development site is in an area identifies as suitable for wind energy development in a local or neighbourhood plan; and
• Following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

Suitable areas for wind energy development will need to have been allocated clearly in a Local or Neighbourhood plan. Suitability based on other factors, such as wind resource, will not be sufficient and whether or not a proposed development has local backing will need to be decided by the planning authority.

Recent statements by Amber Rudd have also added to developers’ fears – including a statement that that local people would have the final say on planning applications, implying either that there will not be a right to appeal to the Planning Inspectorate where developments are refused due to local concerns or that such appeals would be pointless as Inspectors would not overrule local decision makers.

Whilst there has been some backtracking on that issue, with a spokesperson for the DCLG confirming that there will still be a right to appeal, Inspectors are still required to take into account the new guidelines including whether the scheme has local backing in their determinations. Given the Government’s clear stance, it is likely that this will result in Inspectors coming down against development where there are appreciable local objections – at least for as long as the Ministerial Statement stands.

We are living in a digital world where child protection is at its most vulnerable; or so the papers would have us believe. There is no denying that safeguarding remains the single most important aspect to get right in a school and we see the lengths that heads go to to ensure that this is the case. However, I am concerned that schools are trapped in a world dictated by a nanny state and are becoming more and more restricted from celebrating their children with the outside world.

We recently supported a brand new academy which opened on 1 September with just one reception class. This is normal for free schools – they begin with one year group and continue to admit children at that level until there are children in all planned year groups. What was unusual about this particular school was that the new reception class, the only class, contained 6 sets of twins.

This means that for the first year, half of the school’s children will be made up of twins and until those children leave school, that class will contain 12 children from just 6 families. This was an interesting and positive story which the school wanted to share with the community.

However the local authority strongly discouraged the school from sharing this with the press on the grounds of safeguarding. With my Governor hat on I have attended safeguarding training and I know that you only need to publish a child’s name, the school and the year that they start school to create a potential safeguarding issue. However in this case the parents had given permission for the photo to be used and the children’s names would not have been published.

In this particular instance, the safeguarding risks were extremely low but the head teacher was left in a difficult position where scaremongering outweighed his judgement.

Safeguarding remains an issue for every school – this will never change. However we should be celebrating our children and their families through positive pictures and stories that are shared on the school website, in newsletters and where appropriate, the press. We should also be trusting our school leaders to make sensible decisions based on experience, expertise and common sense.  The solution?  Less panic, more support.

Michelmores LLP is once again a sponsor of the South West Business Insider’s Made in the South West Awards, an annual event which celebrates the successes of the region’s manufacturers over the last 12-months.

Now in its fourth year, the awards recognise manufacturing excellence across eight categories, including Manufacturing Innovation, Sustainable Manufacturer and Manufacturing Company of the Year among many others.  Michelmores, which has over 600 manufacturing sector clients, is sponsoring the Aerospace and Defence Award category.

The winners will be announced at a gala dinner at The Grand by Thistle, in Bristol on 5 November 2015.

Head of the Manufacturing team at Michelmores, Richard Cobb commented:

“We are delighted to be a key sponsor of the Made in the South West Awards again this year.  They recognise the great work done throughout the year by those in the region’s manufacturing industry and the winners automatically go forward for the for the national Made in the UK awards, to be held in 2016.”

For a full list of award categories please see the South West Business Insider website.

Michelmores has developed ‘Business Starter Packs’, specifically designed to provide starting or expanding businesses with their essential and basic legal documents, support and commercial advice.

We recognise that many people start new businesses each year, from young entrepreneurs to businesses planning expansion. All need proper legal documents and advice, but low fixed price template packs from the internet are rarely good enough, and totally bespoke agreements can cost much more than a young business wants to spend. We aim to meet the demand from clients to bridge that gap with the new Business Starter Packs.

There are three fixed fee packages on offer, with the option to add on extras to create a tailored package to suit individual business needs. All involve the incorporation of a new limited company as a first step.

The Bronze package offers legal advice on company incorporation, guidance notes on matters relating to tax, real estate, website terms, employment, debt recovery, duties of directors amongst others and gives you contact introductions to recommended accountants, trademark agents and financiers. This package would suit start-ups looking for more advice and handholding than the typical “off the shelf” company formation agents.

The Silver package includes all services from the Bronze package plus additional features such as essential company secretary services for one year, templates for website ‘terms of use’ and ‘privacy policy’ and a 30-minute advice session from a specialist lawyer.

The Gold package features all services from the Bronze and Silver packages plus additional features such as one hour of tailored advice from one of Michelmores’ lawyers in specialist areas of your choice such as: corporate, commercial, employment, tax or real estate. This package would suit a business that is looking to take its next step to grow and commercialise an established business concept.

Additional options can also be added to any package, for example a tailored shareholders’ agreement and articles of association, advice regarding protection of intellectual property, an e-commerce package (which covers tailored online terms and conditions of sale, website terms of use, privacy policy and cookies policy) and supplier terms of business. These additional services may be purchased at reduced rates if bought within one year of subscription to the Business Starter Packs.

If you are interested in the Business Starter Packs or would like more information contact Caroline Bamford on cosec@michelmores.com

With the latest series of Dragons’ Den recently gracing our TV screens every Sunday evening, one recurring hurdle for a lot of the budding entrepreneurs is IP protection.

Properly considering intellectual property (IP) rights in your overall business strategy is often key to clinching a deal in the Den. Particularly if you are producing products for sale, the Dragons will frequently fire questions relating to what patent protection you have obtained, what trade mark have you got registered and whether you own the domain name.

IP protection and strategy should be a high priority for manufacturers, whose most valuable asset may be its IP rights. IP rights help an owner to prevent competitors from offering similar products, using similar brand names, open up opportunities to make money out of licensing your IP rights and often impress the Dragons.

So what are some of the key IP considerations?

1. Carry out some basic online searches

Invest some time into checking search engines, Companies House and online trade mark registries at the UK Intellectual Property Office (UKIPO), Office for Harmonization in the Internal Market (OHIM) and further afield depending on where your target market is) to check whether your chosen brand name/logo is already being used by a third party. Also check similar names/logos as this can  lead to risk of trade mark infringement. You may want to obtain official clearance searches (via a trade mark attorney) that you can rely on more than your own searches. Check if the domain name is available.

2. Protect your confidential information

Whilst it is normally a good idea to keep your new business idea a secret before you are ready to market (to maintain a competitive edge), it is absolutely essential if you have developed a product (including software) or a process that could be patentable. 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.

3. Develop your trading name

If you have decided to operate as an incorporated company in the UK then you need to decide on your company name and properly incorporate your company at Companies House. We can assist you with this. Note that you can decide to trade under different names than your ‘limited company’ name as this entrepreneur has done with her brand Good Bubble.

You may also want to purchase/register domain names and variants on the name – this is something you should be able to do easily, if the domain names are not already held by a third party through a recognised domain name registrar.

4. Protect your name and logo

Consider registering your main trading name, brand names and logos. You will also need to think about where your target market is and whether you want to go for UK protection, EU wide protection (called “community” marks) or further afield. Whilst 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 take legal advice in registering trade marks. This vitiligo skin care entrepreneur “forgot” to put her trade mark on her packaging almost losing the Dragons’ confidence (but she secured investment).

5. Consider other IP protection

As well as trade marks, you can register other types of IP including patents and design rights. Patents can be key in the manufacturing industry in order to protect various inventions as well as the production processes. When looking at your IP strategy you should consider where your current and future target markets are and whether IP protection is appropriate. Some countries like China have a first-to-file system, meaning that if someone goes off and registers your trading name before you, you will find it very difficult to then obtain the registered name (Apple and Facebook have both faced this issue!).

In the UK there are various IP rights that arise automatically including copyright and unregistered design rights. It can be important to retain evidence of your creation and often creators will sign and date their own work and sometimes even post it back to themselves. On websites, marketing materials and certain goods, owners of copyright tend to assert their rights by inserting a short copyright notice, for example: © Michelmores LLP (sometimes followed by the year created). This is not essential but makes third parties aware of your IP rights. Also not essential, but potentially helpful, is to assert your rights over your trade marks whether registered (by inserting the ® symbol) or unregistered marks (by inserting the ™ symbol). Note that it is a criminal offence to use the ® symbol for an unregistered mark, so be careful.

You may also want to protect your IP by not telling anyone about it – i.e. by keeping a trade secret. Keeping recipes as trade secrets is sometimes used in the food and drink industry, which this entrepreneur of a new range of crisps (Tags®) might have considered.

6. Clean up ownership of IP

Most investors want to see that the company they are investing in owns all of the IP rights or has clear licences to use the IP rights. Often in start-ups, an entrepreneur will invent something which is technically owned by him/her as an individual. In order for the invention to be owned by the company, there must be a legal assignment from the inventor(s) to the company. Investors may even ask to see this agreement. Care must also be taken to ensure IP rights are legally transferred through employment contracts, consultancy contracts, design contracts and other contracts where individuals or third parties are developing IP for the company.

A lot of the above require time and financial investment, so we often advise clients to prioritise various stages if budgets are tight (as well as wider considerations like employment contracts, directors’ service contracts, shareholder agreements and articles of association). This yoga product entrepreneur explained that he had spent £60,000 (!) on registering his intellectual property rights (his company has a patent for his exercise apparatus).

If you have a good brand or product, you will probably be copied at some point. If you have registered rights you should be in a much stronger position to dissuade potential copiers and stop actual copiers.

Michelmores: We have developed a range of Business Starter Packs, specifically designed to provide starting or expanding businesses with their essential and basic legal documents, support and commercial advice.  Getting your ‘legals’ cleaned up can make your business much more appealing to potential investors/Dragons (as well as ensuring you are complying with your legal obligations).

The Intellectual property Office (IPO): Contains lots of information on IP rights and has also taken a keen interest in the Dragons this series with its IP blog on each episode – an interesting read for any entrepreneur (particularly if you’re thinking of applying to the Den!).

This article is in no way an exhaustive list of IP or business start-up considerations, for more information please contact David Thompson, Partner in our Commercial team.

Ashley Madison, a site encouraging extra-marital affairs, recently suffered a data security breach by hacker group “Impact Team” which led to several gigabytes of data including names, payment details, emails and even the website’s source code being leaked.

How do occurrences like this happen?

Advances in technology have enabled all of us to collect, learn and share information about each other more quickly than ever before. Businesses now have advanced tools available to store and protect vast amounts of customer data. But hackers also have increasingly sophisticated methods of gaining unauthorised access to this data. And so begins a digital game of cat and mouse. Cyberattacks are more common than many realise, and readers may already be aware of high profile cyberattacks that affected JP Morgan Chase, Target, Home Depot and Sony Pictures. The scale of the problem is indicated by the Department for Business, Innovation and Skills (“BIS”) reporting that 81% of large corporations and 60% of small businesses reported a cyber breach in 2014.

Why is it important to be on top of data protection?

The consequences of a data breach can be severe. BIS reported that the cost of breaches nearly doubled in 2013/14, with the average cost for the worst cyber-security breach in a year estimated between £600,000 to £1.15 million for large businesses and £65,000 to £115,000 for smaller ones. Such costs may not be backed off to a business’ insurance.

In the Ashley Madison case, the media exposure has been astounding. There has been irreparable damage to Ashley Madison’s goodwill as well as two suicides linked to the data leak. A google search for “Ashley Madison suicides”, for example, now returns just under 18 million results. Not a position any business wants to find itself in.

In the UK, a breach of data protection law can lead to a £500,000 fine from the Information Commissioner’s Office (“ICO”), the UK regulator for data protection. This is likely to significantly increase in the next few years when the General Data Protection Regulation is implemented and there is also the possibility of civil claims from aggrieved data subjects.

How do I help prevent myself from being the next Ashley Madison?

One of the many issues which flows from the Ashley Madison data breach is whether anything could have been done to prevent the breach in the first place, or at least limit its impact.

With this in mind, keeping information secure is a cornerstone of data protection legislation in the UK.  Monetary penalty notices overwhelmingly relate to the 7th data protection principle, which requires appropriate technical and organisational measures to be taken against unauthorised or unlawful processing of personal data (“7th DPP”). That said, there is no “one size fits all” solution when it comes to information security.

Whilst implementing a robust data protection policy does not often find itself towards the top of a business’ to-do list, a robust data protection policy and cybersecurity strategy, as well as effective implementation of the 7th DPP can help to reduce the likelihood of a breach in the first place and go a significant way towards minimising the impact.

Amongst other aspects, a well crafted data protection policy will explain what data is being handled, who is allowed to access that data and which processes are being applied to that data. The process of implementing a data protection policy can also prove valuable in itself because it can act as a catalyst for a more general review of data protection practices, by leading business to ask the following questions:

• Do we collect more data than we need?
• Do we store data for longer than we need to?
• Where do we save and do we encrypt user passwords? Could we easily encrypt more of this data, our servers?

Asking these questions is key as failure to encrypt information in accordance with and otherwise adhere to the 7th DPP, for example, is an aggravating factor when the ICO is considering enforcement action.

Life is short: have an affair – Review your data protection practices.

Given the sophistication of recent cyberattacks and the ease with which an employee’s mistake can lead to customer data being distributed (for a recent example see: Soho sexual health clinic errantly discloses names of 780 HIV positive patients), businesses need to be aware that data privacy matters, have strong cybersecurity measures in place and take data security seriously. Implementing an effective data protection policy and keeping it under regular review can be a valuable tool to a business’ cyber defences, helping to ensure it is in a better position possible to minimise the impact of any attempted cyber-attack or data breach.

Modern communication has changed, talking has become old-fashioned, instead people ‘tweet’,’ like’, ‘retweet’, ‘unlike’ and ‘favourite’. Social media has provided a forum for anyone to freely air personal views and share information with their groups.  Whilst this is hugely popular amongst the 304 million monthly active users on Twitter, it does raise issues in relation to protection of users’ intellectual property (‘IP’) rights.

Despite the differences between English and US law, both jurisdictions agree that copyright can exist in as few as 140 characters, in images or in videos. This has recently come as a surprise to many Twitter users who have had their ‘tweet withheld’ as a result of a copyright takedown notice being submitted by the original author of the posted material.

Recent instances of users’ jokes being reported for copyright infringement has been met with criticism by some Twitter users who consider that social media platforms are now taking an increasingly heavy handed approach to IP protection. In reality, its stance has changed little since its inception. Under the Twitter Rules and Terms of Service, unauthorised use of copyright material is not permitted and users are encouraged to share content by ‘retweet’, which acknowledges the author. The requirements on users therefore remain the same.  However, the decision by Twitter to increase the transparency of its procedures and clearly mark reported content as ‘withheld’ has brought its efforts to identify violations of IP rights to the attention of its users.

Some users have pointed to the precedent of unattributed use of content on social media since its inception and raised concerns over the way in which copyright can be proven in relation to jokes or anecdotes.

Whilst potentially irritating for users in the context of everyday exchanges, any increased activity by social media platforms will no doubt be welcomed by businesses seeking to enforce rights against IP infringers. A common example of IP infringement in a social media context is the use of ‘lookalike’ accounts which use the branding, images and text to pass itself off as a business. Takedown notices are usually issued as soon as the infringement is discovered as these fake accounts can be highly damaging to businesses’ reputation.

The concept of removing infringing material from websites is by no means new. Twitter is required to comply with relevant legislation (Digital Millennium Copyright Act 1998 in the USA and the Electronic Commerce (EC Directive) Regulations 2002 in the UK and across Europe) in relation to the content that it hosts. In order to protect itself against liability for damages, other civil remedies or criminal sanctions, a website provider is required to ‘respond expeditiously to remove or disable access’ to any information which it knows to be infringing.

With this is mind, it is clear that Twitter must act promptly to disable access to infringing tweets, or risk a claim being made against it by the original owner of the IP rights. Although neither the UK nor US legislation specifies what information should be communicated to other website users in respect of the disabled content, it appears that Twitter has adopted a transparent approach in relation to the removal of content.

It is interesting to see the mixed reaction of users in relation to Twitter’s perceived increased intervention in relation to IP rights.  It does not appear that there has been a change in approach; it has simply become more visible.

It is a valuable reminder for businesses and individuals that IP rights do apply on social networks in the usual way and that there are relatively simple methods of removal where creative works have been used without permission.  It is therefore of fundamental importance for rights holders to be fully aware of their rights and how best to protect these.

For more information please contact Charlotte Bolton, Solicitor in the Commercial Disputes & Regulatory team on charlotte.bolton@michelmores.com or on 01392 687745

The recent Court of Appeal case of King v Chiltern Dog Rescue [2015] decided on 9 June 2015 marks a decisive swing away from what was seen by many as an overly flexible application by the courts of the law on deathbed gifts, also known as ‘Donatio Mortis Causa’ or ‘DMCs’ in recent cases.

The case overturns the previous High Court decision in King v Dubrey [2014] which we commented on in December 2014. Readers will recall from that article that the now overturned High Court decision represented a widening of the requirements needed for a valid deathbed gift. There had been widespread concern amongst the legal profession, charities and others, that this decision might open the floodgates to DMC claims and that it represented a further reflection of the erosion of the strict requirements of testamentary disposition. The recent successful appeal by two of the previous claimants (Redwings Horse Sanctuary and Chiltern Dog Rescue Society), thankfully, marks a return to the strict application of deathbed gift requirements.

Requirements for Deathbed Gifts

DMCs occur when a gift does not comply with the formal legal requirements regarding the transfer of property or those of a valid Will, but meets the 3 primary requirements of a deathbed gift, namely:

1. The gift must be in contemplation of death, which under the rule in the case of Re Craven’s Estate (No.1) [1937] Ch.423 needs to be ‘within the near future’;
2. The gift must be made to take effect upon the death of the Donor;
3. The Donor must deliver either the subject matter of the gift or the means of coming into possession of the subject matter to the donee or their agent;

Background to the Law

Up until 1990 the DMC could not apply to land because the Donor could be said to be ‘parting with dominion’ where they retained the legal and equitable interest in the property, i.e. the subject matter of the gift.

The landmark case of Sen v Hedley [1991] Ch 425 changed this and in so doing the landscape of DMCs going forwards.

The case of Vallee v Birchwood [2013] was a further key decision which had the effect of widening the previously narrow application of the law of DMCs. The case concerned a Miss Vallee, an adopted daughter of the Donor whom Miss Vallee visited twice a year. On one such trip to visit in August 2003, her father stated he may not be alive by the time of her next visit (which was due to take place at around Christmas time of that year) and he gave her the key and Deeds to his house (an unregistered property), his war medals and a photograph album. He died in December 2003, just over 4 months after his daughter’s last visit and shortly before she was due to visit him next.

The Court found that the Donor had made the gift ‘in contemplation of his death’ notwithstanding that he had died over 4 months after the purported gift. By way of comparison, in previous reported decisions the period between the gift and the death of the Donor had been a few days: 5 days in the case of Re Craven’s Estate (No.1) [1937] Ch.423, 3 days in the case of Sen v Hedley and 3 days in the case of Woodard v Woodard [1995] 3 All ER 980.

The Court’s decision that the gift was a valid DMC was heavily criticised in the case of King v Chiltern Dog Rescue and should be relied on only with great caution, if at all, going forwards.

King v Dubrey/King v Chiltern Dog Rescue

The present case involved a Miss Fairbrother who gifted her house to her nephew, 4-6 months before she died. This gift was to the disappointment of seven charities that were set to inherit the house under the Will in addition to the rest of the Deceased’s Estate. The nephew, who was living with his aunt and caring for her, claimed that when his aunt’s health deteriorated she passed him the Title Deeds to the property and said “this will be yours when I go”.

The Court decided at first instance that the gift of the house was a valid DMC notwithstanding that the Donor was not thought to be seriously ill and had not visited a doctor recently, she was not about to undergo an operation or a dangerous journey, she did not express a date by which she thought she might be dead, or say she would die shortly. Additionally, the Court decided the gift was ‘made in contemplation of death’ despite Miss Fairbrother surviving the gift for four months as it was still ‘conditional upon death’.

This first instance decision was overruled on appeal which considered that it, as well as Vallee, had been wrongly decided and stepped outside of the bounds of DMCs.

In coming to this decision, the Court of Appeal considered that the first requirement – that the Donor must have contemplated his impending death – was not met in either the case of Vallee or in the first instance decision in King v Dubrey.

In Vallee, the Donor, like many elderly people, was approaching the end of his natural life span but he did not have reason to anticipate his death in the near future from a known cause.

In King v Dubrey, although it was obvious that at the age of 81 most of the Donor’s life was behind her, there was still no evidence that she was suffering from any specific illness, she was not about to undergo a dangerous operation or to undertake a dangerous journey.  It could not, therefore, be said that she was contemplating her impending death for a specific reason at the time of making the gift.

In addition, the words “this will be yours when I go” were reflective of a statement of testamentary intent, rather than a gift conditional upon death within a period of time.  Also, and potentially crucially to the court’s ultimate decision, the Donor’s repeated, unsuccessful, attempts to prepare a will with her nephew’s assistance after the purported gift showed that they both assumed that she had the ability to dispose of her house by will, which would not have been the case if she had made a DMC.

Conclusion

The Court of Appeal’s reasoning was that it was important to keep DMCs within its proper bounds. DMCs are an anomaly in the law insofar that they enable a Deceased to transfer property without complying with legal formalities.  Such an anomaly could potentially be used as a device to validate ineffective wills which could have had far reaching and unwanted implications on the freedom of testamentary disposition.  The decision is an affirmation that the law of DMCs cannot be used as a flexible alternative to the testamentary requirements set out in Wills Act 1837.

The positive outcome for the charities in King v Chiltern Dog Rescue [2015] means that all seven charities under the King v Dubrey case will benefit; the Chiltern Dog Rescue Society, the Redwings Horse Sanctuary, the Blue Cross Animal centre, the Donkey Sanctuary, the International Fund for Animal Welfare, the PDSA and the World Society for the Protection of Animals.

The decision could be particularly significant to charities that may be disputing or defending a DMC claim: going forwards DMCs will be significantly harder to establish than they had become.

For more information please contact Tony Cockayne, Head of the Disputed Wills & Trusts team on 01392 687601 or email tony.cockayne@michelmores.com.

This year’s winner of the Michelmores Charity Run and local athlete, Owen Walpole – who finished the course in an incredible 16 mins 6 seconds, is soon to be jetting off to Africa to continue the pursuit of his dream of competing at the top level in Athletics as a 1500m runner and gain support for his foundation, Isaiah Walpole. We caught up with him to hear more about his running career and what local businesses can do to support him to help meet his goals…

Tell me a little about your background

I was born and bred in Exeter and went to school in Torquay. I played a number of sports but running was my first love – my limited co-ordination meant I was sadly never going to be the next Lionel Messi! I put all my energies into athletics – running in particular, and I’ve found it a great way to bring people together and have fun.

What got you interested in running?

I remember my parents first took me to the Exeter Harriers as a six year old – they have always been running fanatics. Mum is still a competitive masters athlete and has been coached by my Dad for decades – watching her compete and train always inspired me as a youngster and still does.

What made you decide to train to become a professional athlete?

Last year I started a graduate role in Glasgow with NHS Scotland and whilst I enjoyed the job my running took a hit and I felt it was limiting my progression. After chatting to Myles Edwards who runs a charity and trains out in Iten, I knew I didn’t want to look back and think ‘what if?’, so I decided to take the plunge and head to Kenya. I have plenty of time to forge a career but an athletics career is finite.

Why have you chosen Iten as the place for your training?

Once I had made the decision to put everything into improving as an athlete Iten stood out. It is the home of distance running and has produced a host of Olympic champions and world record holders such as David Rudisha and London Marathon champion Eliud Kipchoge. It has an almost mythical reputation as the heart of Kenyan running dominance and, with its altitude base, was somewhere I had always dreamed of visiting.

What’s your ultimate dream?

The dream is to get a Great Britain vest and compete in a major championship. The Olympic Games is the one that you really dream about as a kid and is something I still haven’t let go of.

My goal for next season is to make good improvements on my personal bests at both 1500m and 5k and qualify for a final at the British Championships.

Why is it so crucial to have local businesses sponsor your journey?

In order for me in continue pursuing my dream and improving my running in Iten I require sponsorship. As a local athlete it would be fantastic to have the support of a business that is embedded in the local community. In exchange I would happily get involved in any company events, wear their logo on my sports kit at a host of local, regional and national event as well as talk about the support given in my fortnightly Western Morning News column.

As well as allowing me to pursue my dreams as an athlete the support of a local organisation would allow me to grow the foundation that I have set up – Isaiah Walpole – which supports a primary school in Kenya to stay open and take on new pupils but it also has a bigger vision.

Can you tell us more about this foundation?

Several years ago former marathon runner Isaiah Kosgei decided he needed to give something back to his home town of Segero, Kenya, so with his own money he built a not-for-profit primary school. King David School provides an education to over 170 children and has already done great things for the local community. On my first trip to Kenya I met Kosgei and visited the school and I immediately wanted to get involved and help the project.

With over 1million children of primary school age not in education in Kenya we firstly want to expand King David School to accommodate a greater numbers of pupils – calculating the cost of supporting a child’s educational needs for one year to be £78.50 for a child in Year 1-4 and £58 for a child in Year 5-8. Our long term vision however is to build a Technical College for older children to  learn a trade – the college would follow our not-for-profit principles, providing cost neutral or free education where it is needed.

As we carry out this work I am keen to forge links with local schools and organisations in the South West. So as well as training full time as an athlete, I plan on spending a lot of time in schools and other community groups throughout Devon. I want to help to grow the foundation and create links between the two communities by organising cultural exchanges and fund raising events.

Education should be a basic right for all kids regardless of their economic status, and our foundation will help to cover the cost of school fees, school meals, uniform and educational materials.

Workers with no Fixed Workplace: ‘Working Time’ can include time spent travelling to and from home

Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (C-266/14)

Background

Neither the Working Time Directive, nor the Working Time Regulations 1998, stipulate whether travel to and from a place of work, or between places of work, should be considered as working time. The government’s non statutory guidance suggests that ‘time spent travelling for workers who have to travel as part of their job e.g. travelling sales reps or 24 hour plumbers’ is included in working time, but that ‘normal travel to and from work’, and ‘travelling outside of normal working hours’, is not.

Facts

Tyco Integrated Security SL, and another company within the same group, specialised in security system installation and maintenance, each company employing around 75 technicians. Although, initially, the technicians were each assigned to a particular province or area of Spain, in 2011 the companies closed their provincial offices and assigned all their employees to their central office in Madrid.

Each technician used a company vehicle to travel from their home to the sites for installation or maintenance, before returning home at the end of the day. The distances from their home to the assignments varied, and were sometimes more than 100km. They received details of their assignments via an ‘app’ on their mobile phone, which showed their task list for the day.

The companies did not regard the first journey of the day (from home to first assignment), or the last journey of the day (from last assignment to home) as working time. As a result, they calculated the working day as starting from the arrival of the technician at their first assignment, and ending when they left their last assignment.

The technicians brought a complaint in a Spanish court that the companies were breaching the working time rules by not including their first and last journey of the day.

The Spanish court noted that the Working Time Directive only refers to either ‘working time’ or ‘rest time’ – there is no provision for situations falling between the two. However, they considered that the workers were told by mobile phone what route to follow and where the work must be done, and so they were no longer able to choose how close they lived to their place of work. As a result, it was likely that travelling time cannot be considered as rest time. That being said, neither was the employee, strictly speaking, at the employer’s disposal during the journeys to the first assignment and home from the last assignment.

The Spanish court stayed proceedings, and referred a question to the European Court of Justice (‘ECJ’) as to whether time spent travelling by a ‘peripatetic’ worker, at the beginning and end of the day, constitutes ‘working time’, or a ‘rest period’.

Advocate General’s Opinion

The Advocate General gave his opinion that the first and last journeys of the day should be classified as working time. He indicated that, to meet the definition of ‘working time’, workers must be at the workplace, at the disposal of the employer, and carrying out their activity or duties. The Advocate General viewed travelling as an integral part of being a peripatetic worker, and a ‘place of work’ could not be reduced to the physical presence of the technicians on customers’ premises. Further, travelling was inherent in the performance of their activities.

The most difficult criterion to determine was whether workers could be said to be at the disposal of their employer during the first and last journey. However, in the Advocate General’s opinion, travelling was still done within the context of the hierarchical relationship which linked the worker to the employer. The journeys were subject to the authority of the employer, in that the employer could choose to change the order of customers or cancel an appointment, or require workers to call on an additional customer on their journey home.

Therefore, the time spent by workers travelling from their homes to the first customer and from the last customer to their homes must be considered ‘working time’.

Tips for Employers

This is only an opinion of the Advocate General and is, therefore, not binding on the ECJ or the national courts and tribunals. However, such opinions are usually followed by the ECJ.

There is currently little existing ECJ case law in this area. We will keep you updated with developments.

Northern Ireland Court of Appeal considers the inclusion of voluntary overtime in holiday pay

On 17 June 2015, the Northern Ireland Court of Appeal heard submissions in Patterson v Castlereagh Borough Council, regarding whether voluntary overtime should be included in the calculation of holiday pay.

Although the outcome will not be binding on the English Courts, it will certainly be persuasive. We will inform you of the result as soon as the Judgment has been delivered.

On 18 June, DECC announced the Government’s plans to end public subsidies for new, onshore wind farms by introducing legislation to close the Renewables Obligation across Great Britain for such farms a year early, from 1 April 2016. The end to the subsidies (issued in a form known as ‘ROCs’) had been scheduled for 2017.

In DECC’s announcement, the Energy and Climate Change Secretary, Amber Rudd, said:

“…… we are driving forward our commitment to end new onshore wind subsidies and give local communities the final say over any new windfarms. Onshore wind is an important part of our energy mix and we now have enough subsidised projects in the pipeline to meet our renewable energy commitments”. 

DECC’s figures indicate that, in 2014, over £800 million of Government subsidies helped onshore wind to generate 5% of the UK’s total electricity.

Fergus Ewing, Scottish Minister for Business, Energy and Tourism, has warned that the Government’s decision could be the subject of a judicial review, noting that around 70% of onshore wind projects in the UK planning system are located in Scotland.

DECC’s announcement confirms that certain projects will be eligible for grace periods, which the Government is minded to offer to projects that already have planning consent, a grid connection offer and acceptance, as well as evidence of land rights. DECC considers that such eligible projects could capture up to 5.2 gigawatts of onshore wind capacity.

DECC’s statement provides that the Government will look at options to continue support for community energy projects, as part of the Feed-in Tariff Review later this year, but this may be of little comfort to developers who have already expended substantial time, money and effort on existing projects.

Regen SW has indicated that, within the South West, there are a number of sites, representing 84.2 megawatts of capacity, which have planning permission granted or are under construction, and that there are further sites, representing 46.2 megawatts of capacity, with planning permission being submitted.  It is unclear, however, how many of these projects will meet the grace period requirements.

The grace periods will be critical for developers who have made significant financial commitments, just by putting projects into the planning system, yet alone obtaining all relevant consents.  Developers will be keen to ensure that projects which are under development in the existing regime are not penalised.

ROCs are gradually being replaced by a new regime, focussed on Contracts for Difference (‘CfDs’), for which a finite pot of public money is available. The early demise of ROCs may have an impact on the timing of the next CfD auction and we await guidance on whether CfD support will still be available for onshore wind projects.  Continuing uncertainty will undermine confidence in the CfD auction process and lead to reduced investment in the onshore wind market.

Dale Vince of Ecotricity, interviewed on BBC Radio 4 just after the announcement, commented that most developers had already factored in the change of policy (which was clearly trailed in the Conservative Party manifesto) and that it wouldn’t affect their business. Unsurprisingly, Mr Vince then pointed out that the policy seemed to be driven by a desire to preserve goodwill in Tory-voting, rural constituencies, rather than out of any concern to meet renewable energy targets in the most cost-efficient manner.

Developers will be keen to advance in a timely fashion with their current projects, since any delays could make projects ineligible for ROCs support and, therefore, unviable.  If the Scottish National Party does press for judicial review, developers will watch with bated breath, since they could benefit from the outcome of any ensuing litigation, but this is unlikely to produce a swift resolution of the issue.

If you think that your projects may be affected by this announcement and would like to consider your options further, Michelmores’ Energy and Renewables team is on hand to assist and advise.