Background

Civil partnerships, having been part of domestic life for some time, are now a familiar concept in our society. Indeed, within the last year, marriage between same sex partners has also now become legally possible.

Nevertheless, there are many civil partners who, for a variety of reasons, do not wish to convert their civil partnerships into marriages − or prefer to enter a civil partnership rather than a marriage. Sadly, civil partnerships can break down, just as they can with marriages.

In this article we will look in more detail at the legal status of civil partnerships and the consequences for the partners if there is a breakdown in the relationship.

Status of civil partnerships

A civil partnership is a formal legal recognition of a relationship between partners of the same sex. Once a civil partnership has been legally formed, each of the parties is treated in law as having rights, and owes to his or her partner certain responsibilities and obligations. These rights and obligations apply both whilst the civil partnership exists and to the arrangements which have to be made if it breaks down. The legal position of the parties is very similar to those, either of the same or opposite sex, who are married.

Formation of civil partnerships

A civil partnership comes into being once the formalities set out in the Civil Partnership Act 2004 have been complied with. Those formalities, both prior to the ceremony and during it, are very similar to those which apply to marriage. The ceremony is conducted by the Registrar (of Marriages and Civil Partnerships) and can only take place in premises which are licensed for that purpose.

Children

It is increasingly common for civil partners to have children. The children of civil partners may be adopted or, in the case of female civil partners, have been born to one of the partners. It is  also possible for civil partners to have a child by a surrogate mother.

Once civil partners have legal responsibility for children, then they have parental and financial obligations towards those children, which continue even if the civil partnership ends. Further, depending on what arrangements are felt to be in the best interests of the children, they will have the right to see the parent with whom they are not living and, usually, to spend time with that other parent.

Civil partners, as with spouses from a failed marriage, are encouraged to try to make appropriate arrangements for their children without the intervention of the courts. If a case does have to go to court, there is no discrimination against one or other of the partners on account of gender. The arrangements which will be made are those which best suit the interests of the children, irrespective of the sex of either parent.

Finances

Civil partners are in the same legal position as married couples in most areas  including:

• pensions
• social security
• wills and inheritance
• property rights
• life insurance
• inheritance tax

Breakdown of civil partnerships

If a civil partnership breaks down, an application can be made to the court for the partnership to be brought to a legal end. This is a formal process rather like a divorce at the end of a marriage. The ground on which the partnership is said to have broken down must be stated.

If the circumstances are appropriate, one party can claim financial support from the other or a share of any assets. Similarly, support can be claimed for a child or children.

As with married couples, it is possible for civil partners to enter into an agreement regarding, for example, what assets were brought into the partnership and how they accept things should be settled if the partnership ends. Whether that agreement would be upheld by the court in the event of a dispute depends largely on whether the way in which the agreement was made and its effects are regarded by the court as being fair to both parties.

The legal process for ending a civil partnership

If your civil partnership has irretrievably broken down, it is perfectly possible for parties to deal with the legal formalities of dissolving the partnership themselves. The real issue is whether all the necessary details will be considered and resolved. If an important factor, for example, an appropriate sharing of possessions, finances, including pensions is not finalised, then there is a risk that later, possibly even years later, the case may be opened again. It is, of course, far preferable that everything is completed so that both partners know where they stand.

If you are contemplating entering a civil partnership, or your civil partnership has or looks as though it may come to an end, there are legal considerations that you ought to take into account. We are experienced in dealing with these issues. Please contact us and one of our experts in this area will be pleased to help.

For more information or some preliminary, confidential advice, please contact Pippa Allsop from our Family Team by telephone +44 (0)1392 687747 or email pippa.allsop@michelmores.com.  

Further to our earlier article regarding Stamp Duty Land Tax (SDLT), HMRC have put out a consultation paper on the proposed higher rates of SDLT in relation to additional residential properties. The consultation period ended on 1 February 2016 and ‘the lines are now closed’.

We now have to wait until Budget day on 16 March 2016, to see the first draft of the legislation – although it is possible that clues will appear beforehand from north of the border, if the parallel Scottish provisions are released a week earlier.

As the consultation document shares more of the HMRC thinking, and indeed examples from them on as to how the legislations work, it is clear that there would be both intended and unintended consequences. If HMRC take on board the views of various groups within the industry by instructing the Parliamentary Counsel appropriately a number of unwanted results can be avoided.

It is relatively easy to say that if someone purchases a ‘buy to let’ property after 1 April 2016 that they will have to pay an extra 3% of the total price in SDLT; however, a number of different permutations are expected to arise depending on who is buying the property and whether the property in question is their main residence.

Joint Purchasers

The current proposal includes a provision that if a property is purchased jointly, then if any of the joint purchasers are buying an additional residential property and not merely replacing their main residence, the 3% surcharge applies to the entire transaction.  To be fair to HMRC, they themselves have questioned the fairness of such a measure.  Those in the industry have pointed to one of the few SDLT cases we have had so far where a charity purchased jointly with a non-charity was allowed to claim relief from SDLT to the extent it was purchased on the property, even where the non-charity was not.  It seems that it would be entirely possible to have a parallel system for the 3% surcharge.

Main Residence

An important element of the new regime concerns main residences.  The surcharge applies if at the end of a transaction a person owns more than one property.  At the moment the proposal is that if a new main residence is purchased without the old one being sold then 3% charge will apply, although if the old residence is disposed of within an 18 month period, a reclaim can be made.

Further, if a person owns a main residence and a buy to let property, if they sell the main residence and purchase a new main residence, (even though this would leave them the two properties after 1 April 2016), as this was merely a replacement of an old main residence, again 3% surcharge will not apply.

What is fine in theory may not be always helpful in practice.  If an individual (B) who has no intention of letting any property contracts to sell his main residence and purchase a new one, but his buyer (A) fails to complete, if he completes on his new purchase he will have two properties; while he can sell to someone else within 18 months and make a reclaim, he will initially have to find the 3% extra SDLT.

The obvious way to protect against this, however, is to insist that on exchange the deposit paid is large enough to fund the 3% surcharge which would arise if A pulls out.  Therefore the threat/fear of the 3% surcharge is on a very practical level likely to be enough to raise the deposits needed to enter a transaction – which is likely to be bad news for first time buyers or those with little equity and the opposite of what the Government intended.

There could be a relatively easy fix here, where if contracts had been exchanged and then one party pulls out, the 3% surcharge should not apply until the old main residence was not sold within the 18 month period.  On this basis the B would not have to find the 3% or risk losing his deposit.

The relief from the surcharge for those ‘replacing a main residence’ means just that.  If the old main residence is kept to rent out, and a new main residence is purchased, the old main residence has not been replaced.  Therefore the 3% surcharge must be paid in relation to the new residence.  It is likely that this will come as a surprise to some, who are not looking at the purchase in the round, but rather the fact that they are buying a new main residence.

Multiple Purchases

Where two or more properties are being purchased at the same time, it is possible to claim Multiple Dwellings Relief (MDR).  The 3% surcharge will still apply to the prices calculated pursuant to the MDR rules.

By a quirk of the legislation, if six or more properties are being purchased at the same time, the purchaser has the option to treat these as commercial rather than residential such that the rate for consideration of £500,000 or more will be 4% and the 3% on residential property will not apply.  The calculation between choosing MDR and treating the properties as commercial is often finely balanced, but adding in the surcharge will tilt the balance towards claiming the commercial rate of 4%.

Large Scale Investments

The Government’s current dilemmas in relation to the housing market are highlighted by their thoughts on the treatment of large scale investors.  It wants the effects of the 3% surcharge to apply to most situations where rental properties are purchased as this can impact other people’s ability to get onto the housing ladder as owner occupier.

At the same time, larger scale investments can actually facilitate development and have a positive effect so there needs to be exemption from the higher rates of SDLT given in a very targeted way.  The Government originally thought that an exemption should be given to funds/corporates which already have an existing residential portfolio of at least 15 properties at the time of the transaction.

Its thoughts have potentially evolved in two directions, first to include individuals as well as corporates and funds.  Secondly to consider whether no regard should be had to the existing portfolio but rather if there were bulk purchase of say at least 15 residential properties as this is likely to provide a significant source of finance and add uncertainty to any particular project.  Owner/occupiers cannot usually borrow for an off-plan purchase more than six months in advance of practical completion since the mortgage offer will not last more than this.  Therefore, the initial finance which small developers need is therefore more likely to come from buy to let investors.

The issue remains as to whether any fund would purchase more than 15 properties in any particular development rather than spreading purchases across a number of developments; if it did, it is likely that if the choice is still available at the time, the fund/individual will claim the commercial rate which is likely to be 4%.

HMRC have informally confirmed that if a company purchases a property other than for rental it will continue to pay the existing rate of 15%, rather than the surcharge applying to this, giving a total of 18%.

In other news, the effects of the increases in SDLT generally are starting to be felt. Certainly in London the statistics reported seem to show that as high value transactions have decreased, the total tax take has decreased despite the rise in rates. George Osborne is not having the last “laffer” now!

The government has said that tackling the gender pay gap is an absolute priority, and last year a consultation, Closing the Gender Pay Gap, was launched. The government has now published the draft The Equality Act (Gender Pay Gap Information) Regulations 2016, which set out the framework for the new gender pay reporting requirements.

Key dates: The new rules are expected to come into force in October 2016, with the first reports to be published in April 2017.

Which employers are affected? Those with over 250 employees

What to publish? Relevant employers must publish:

• Overall mean and median pay gaps gleaned from the whole workforce.
• The difference between the mean bonus payments paid to men and women (and the % of male and female employees that received a bonus).
• How many men and women appear in each quartile of pay in the workforce.

Where to publish? The full pay report information must be published on the employer’s website in April every year, and left there for at least three years. The employer must also upload the information to a government-sponsored website.

Penalties? The government intends for employers who do not comply to be ‘named and shamed’. It will review whether civil or criminal penalties for non-compliance should be introduced in due course.

The draft Regulations are open for consultation until 11 March 2016.

The IT educational initiative has already been implemented into schools with key stage 1 children learning about coding and algorithms. On 10 February 2016 ministers announced a new educational initiative to promote “vital” IP education to GCSE / key stage 4 students.

The UK Intellectual Property Office and Baroness Neville-Rolfe DBE CMG have produced lesson plans for teachers labeled ‘Think Kit‘ which are designed to enable both students and teachers to understand what Intellectual Property (IP) is, how to get the most from your ideas and how innovation plays a vital part in our economy.

The UK Intellectual Property Office also has other resources from key stage 1 upwards and it is exciting to see that children will be learning about innovation from an early age.

As IP has and is being recognised by government ministers as vital to our economy, it seems to makes sense to introduce this concept at school level.

Baroness Neville-Rolfe, Minister for Intellectual Property said:

“It’s important for tech-savvy young people to learn about the principles of intellectual property. The UK creative sector is worth over £76 billion, which makes education even more important.

Providing access to relevant, curriculum linked education resources is a huge step towards creating an IP literate generation to help us secure the UK’s continued global competitiveness.”

For more information on Intellectual Property generally please contact Emily Timmins, Partner.

There are going to be a significant number of changes to company law which will affect all companies registered at Companies House in the UK. The Small Business, Enterprise and Employment Act 2015 (the Act) brought about a number of fundamental changes to UK company law and one of the confirmed changes, which is perhaps the most controversial, is the introduction of a central public registry of those individuals who hold significant control of UK companies – referred to in the Act as “People with Significant Control” or “PSC“.

Who constitutes a Person with Significant Control (PSC)?

A PSC is anyone in the company who meets one or more of the conditions listed in the Act.  This is a person who:

• owns more than 25% of the company’s shares
• owns more than 25% of the company’s voting rights
• has the right to appoint or remove a majority of the board of directors
• has significant influence or control over the company
• has significant influence or control over a trust or firm (in the case of shares held by trustees or a trust or by members of a partnership)

Companies and other entities may also be considered to be PSCs in certain circumstances.

What has not yet been made completely clear is what circumstances or behaviour will constitute significant influence or control.  Draft guidance from the Secretary of State says that, for example, a person has “control” of a company or of the activities of a trust or firm if they have the power to direct its policies and activities and a person exercises “significant influence” if he can ensure that the company or trust adopts those policies or activities which are desired by the holder of the significant influence.  The “control” or “significant influence” need not be directed towards the financial and operating policies of the company and does not have to be exercised by a person with a view to gaining economic benefits from the policies or activities of the company.

There will no doubt be more commentary available on the question of what circumstances or behaviour will constitute significant influence or control as the practice of holding PSC registers develops.

What information must the PSC Register Contain?

There is a duty on companies to investigate, update and obtain information in relation to their PSC Registers. There is also a duty on potential PSC’s to provide information to the company.

Once identified, certain information must be recorded, including:

• in the case of an individual, his name, service address, country or state of usual residence, nationality, date of birth and usual residential address.  Usual residential addresses are protected and won’t be placed on any public register;
• the date on which a person became a registrable person or registrable relevant legal entity and the nature of his or its control.

The government has stated that it intends to issue regulations that require companies to include the following on the PSC Register:

• which one or more of the specified conditions for being a PSC (as set out above) the PSC meets; and
• the level of interest (such as between 25-50%, more than 50% to 75% or 75% or more) that the PSC holds.

This is the approach taken in the draft PSC regulations.

The consequences of failing to comply

A company can impose sanctions if its PSCs do not comply with their disclosure obligations (e.g. loss of voting rights and transfer restrictions). Criminal penalties may also apply to those that breach the rules (e.g the company, its directors, company secretaryand PSCs), including in some circumstances imprisonment.

What action should you take?

The company must obtain and update the necessary information about PSCs both on implementation of the new rules and on an ongoing basis.  This will mean that companies will need to be constantly vigilant for signs of changes in control among their shareholders and take prompt investigatory steps as necessary.  You need to consider and address the following:

• whether your PSC register should be held at your registered office or at Companies House;
• the identity of your current PSCs;
• what checks you should have in place to ensure all PSCs are identified, recorded and contactable, now and in the future.

There is no doubt that these new requirements are onerous and will substantially increase the burden and costs of compliance on UK companies.  However, it is important to keep registers up to date; not only to avoid sanctions, but also from a practical perspective. A prospective buyer of your company or a security provider will insist upon inspecting the register and any inaccuracies or omissions are likely to cause unnecessary delay to the transaction in question.  Ensuring that you have compliant registers now should avoid an increased administrative burden later down the line at what may be a critical time for the business.

Other changes

There are other company compliance changes introduced by the Act and all companies will be affected in some way, as the measures change legal requirements on companies, including what they file with Companies House.   The changes were being phased over a period of 12 months and some of the changes have already been implemented – please see attached Summary of Key Changes for more details.

If you require further guidance on your obligations in relation to the changes in company filing requirements, the PSC Register or wider business administration, please contact any member of the Company Secretarial team of Michelmores or email cosec@michelmores.com.

Since publishing this article the Department for Education has updated their guidance to explain that this grant (which is available to Primary schools creating a new academy chain to help support its development) is now available until 30 April 2016.  

Primary schools creating a new academy chain, known as a Multi-Academy Trust (MAT), will be able to claim a grant in order to help support its development. The Primary Academy Chain Development Grant has been agreed by the Secretary of State in order to provide financial support to more primary schools to build their partnership and encourage the benefits of being part of an academy chain.

The grant is available until 31 March 2016 and is for £75,000, plus up to £5,000 per additional primary school, up to a maximum of £100,000. Only new MATs can claim this grant if they fit either of the eligibility criteria:

• 3 schools creating a new MAT, where the majority are primary schools
• Stand-alone open academies and schools converting into academies can claim if they are setting up a minimum 3 school MAT with at least 2 primaries applying to convert

If groups of two or more primary schools are joining an existing MAT at the same time, the MAT can apply for a grant of £20,000 per primary school (up to a maximum of £80,000).

A Small School Supplement is available for primary schools with less than 210 pupils who are joining a MAT to help meet the expenses associated with the conversion process. Those with 100 pupils or less can apply for £5,000, whilst those with between 100-210 pupils can apply for £2,000.

The grant can be used flexibly, providing that it is used for the establishment and advancement of the MAT as a whole. Within a year of receiving the grant, a case study must be provided for the Department for Education website, and there is a requirement for the MAT to use their experience to help others either through academy sponsorship, for example applying for teaching school status or providing mentoring for another group of primary schools interested in conversion.

Encryption and cybersecurity has been in the news a lot recently, particularly following high profile data breaches from Talk Talk, the NHS and Sony, as well as David Cameron’s statement last year that terrorists should have no safe space to communicate online.

The law has a strange relationship with encryption. UK regulators criticise companies where they have suffered a data breach and failed to encrypt their customer data, but this approach doesn’t exactly coalesce with the political rhetoric around government access to communications (encryption being a significant barrier to this access) or the current plans contained in the draft Investigatory Powers Bill.

The proliferation of encryption

Encryption has never been something used only by organisations to protect their customer data and those looking to cause trouble. It is used, and protects us, almost every time we make a purchase over the internet or check our bank balance online. Some websites, such as Facebook, now use encrypted browsing by default. It is also now more common than ever for individuals to encrypt their own internet traffic, hiding their activities from their internet service provider and potentially law enforcement agencies, via Virtual Private Networks and other services (all of which can be purchased using anonymous, digital currencies).

Despite this, perhaps encryption doesn’t go far enough.

The recent surge in the “internet of things” (think wearable technology and so-called smart homes), drones and self-driving cars also present a challenge for encryption. Consumer drone manufacturers have been criticised for failing to implement adequate encryption methods, enabling the drone to be controlled by unknown individuals and potentially causing harm to anyone in the immediate area. Worryingly, similar criticism has also been levied at military drones. This is not the end of the story, however, as recent developments in self-driving cars also presents a problem – what if the controls were hackable? Reports are already surfacing that the systems used by self-driving cars to navigate can be confused by a properly configured £20 micro-computer, and encryption will no doubt form part of the toolkit used to secure the systems in emerging technologies such as self-driving cars and delivery drones.

The UK regulator’s position

The Information Commissioner’s Office, the body responsible for the enforcement of data protection legislation in the UK, takes a dim view when it transpires that organisations have lost unencrypted data. Where hackers, or opportunists who steal a civil servant’s laptop on the train, for example, acquire data which is encrypted, the information received is unintelligible unless the decryption “key” can be worked out or otherwise obtained. There appear to be no cases in which the theft of encrypted data ultimately resulted in the corresponding decrypted data being made available online (if you are aware of any examples, please comment below or contact me).

Such is the power of encryption that the ICO advises data controllers that when hackers gain access to encrypted data, they do not need to tell their customers that a breach has taken place. Encryption is also something which can be implemented at relatively low cost and, given the protection it offers, it is understandable that the failure to encrypt customer data is seen as an aggravating factor by the ICO when determining any appropriate sanction on the organisation which suffered the data breach.

A change in the market

For encryption to be useful, individuals and organisations ultimately have to be able to decrypt, or make use of, the encrypted information. Generally speaking, “keys” are used to decrypt information, and much of the recent controversy focusses on a shift in the technology market around who holds these all-important keys.

With this in mind, one area of particular interest is the recent shift in the role encryption plays in online messaging. Previously, sending an online message (for example via WhatsApp) did not involve any kind of encryption, or if it did, the message operator would hold the keys to the encrypted messages. This potentially enabled the messaging operator, government security agencies and others connected to the same wireless network as you to intercept and eavesdrop on your messages.

From late 2014, however, WhatsApp implemented “end-to-end” encryption. This means that all messages sent over WhatsApp are now encrypted, and crucially, only the sender and receiver hold the necessary keys to decrypt the message. The result is the transmission of an unintelligible mess over the internet until it reaches the App on your smartphone, at which point its conversion into a message (possibly also with an accompanying emoji, if you’re lucky) appears on your screen.

WhatsApp is not the only messaging provider implementing this kind of encryption and this approach can, in my view, now be described as a growing trend across the consumer technology market.

Why does this matter?

The shift towards end-to-end encryption matters because it makes it significantly more difficult for messages to be intercepted by anyone, including the organisation providing the messaging service (unless that organisation manages the keys centrally) and government security agencies. Many messaging service providers no longer have the keys to decrypt individuals’ messages, and essentially now provide a platform for the transmission of secure, encrypted data. It seems then, that this shift in the technology market has precipitated vague government statements to the effect that encryption should be banned (which statements were subsequently retracted, and we are now left with the less clear claim that there should be ‘no safe place’ for terrorists).

This discussion is all well and good – but more clarity is needed around exactly what technical measures we can expect to be implemented in order to achieve this ‘no safe place’ for terrorists. The government seems particularly aggrieved at the recent trend towards end-to-end encryption in which only the users hold the keys, but this represents a natural evolution in data security. If it is actually the case that the correct balance in the politician’s views is for communications operators to ‘hold the keys’, and in doing so erode personal privacy to an extent, they should be bold enough to say so.

The Energy Saving Opportunity Scheme (ESOS) applies to all medium / large UK businesses and obliges them to conduct periodic energy efficiency audits.

The qualifying criteria are involved, but in essence any business with more than 250 employees or with turnover in excess of £39M p.a. and a balance sheet of more than £33.5M is caught. It is estimated that some 10,000 businesses are within scope.

The audit must be carried out at least every four years, be approved by a qualified ‘Lead Assessor’, be signed off by a board director and be notified to the Environment Agency (which is maintaining a register for this purpose).

Although ESOS is described as a “Scheme” there is no obligation to actually implement any energy saving measures identified and no dedicated financial assistance or incentives are offered. However, Michelmores is aware that at least one bank has sought to plug this gap by offering finance and creating a ‘panel’ of energy performance contractors who will undertake the relevant works on a percentage fee linked to the savings achieved.

The deadline for notifying the EA of the first round of audits is rapidly looming, being 5 December 2015. In light of limited awareness among the business community, and a lack of availability among Lead Assessors at this time, the EA has recently issued guidance indicating that it will not normally take enforcement action in relation to late notifications provided notification is made by 29 January 2016. A further grace period has been announced for businesses which are seeking to gain the relevant energy efficiency best practice certification, ISO 50001, until 30 June 2016. ISO 50001 status exempts the holder from ESOS.

The penalties for failing to notify in time include a fixed civil fine of up to £5,000 plus a daily penalty of £500 for up to 80 days, so the total fine could amount to £45,000. Failure to carry out an audit carries a fixed penalty of up to £50,000, with a daily penalty of £500 for up to 80 days. There are also ‘naming and shaming’ provisions.

Consultation

The Government has recently consulted on a review of the overall package of business energy tax, reporting and incentives (including ESOS). The aim is to simplify the various overlapping measures currently in place, to reduce the administrative compliance burden on business and to increase productivity.

The consultation, Reforming the Business Energy Efficiency Tax Landscape, ran until 9 November 2015. The key proposals are as follows:

• Reporting – Replacement of the CRC Energy Efficiency Scheme (CRC) and the Green House Gas listed-company reporting requirement with enhanced reporting within ESOS.
• Tax – Replacement of the CRC and Climate Change Levy (CCL) with an enhanced version of CCL.
• Incentives – No clear proposal is made; the Government expresses itself open to suggestions provided they are tax-neutral.

It is tempting to see the consultation (and the parallel consultation on the Feed in Tariff) as part of a re-orientation of Government strategy away from subsidising renewable generation and toward promoting cost-effective energy efficiency measures.

The Department of Energy & Climate Change indicate that they are still considering responses to their consultation. Meanwhile, the Department for Business, Innovation and Skills is seeking separate evidence through a research project. Its remit includes Energy Performance Certificates and is due to report at the end of March 2016. So we may need to wait for the 2016 Budget or beyond for further details. In the meantime, businesses must not ignore their ESOS obligations.

Further information:

A Guide to implementing Energy Savings Opportunities
Environment Agency ESOS Guidance
Energy Saving Opportunity Scheme Regulations 2014 (SI 2014/1643)
Consultation, Reforming the Business Energy Efficiency Tax Landscape, HM Treasury / DECC

For more information please contact Ian Holyoak on 01392 687682 or ian.holyoak@michelmores.com or Tom Brearley on 01392 687554 or tom.brearley@michelmores.com

This article was first published in Solicitors Journal on 29 September 2015 and is reproduced by kind permission

Should women feel restrained from taking a stand against sexism by the fear of being labelled a ‘troublemaker’, asks Pippa Allsop

Having received a message on LinkedIn – the supposedly professional networking site – which complimented human rights barrister Charlotte Proudman solely on her ‘stunning’ profile picture, and which ignored any recognition of her legal proficiency, Proudman posted the initial message and her scathing response on her Twitter, along with the caption, ‘How many women [on LinkedIn] are contacted re physical appearance rather than prof skills?’

A bold and inspirational move – had it not been for the fact that the post was not anonymised and, as a result, has now led to considerable backlash professionally, and I suspect also personally, for them both.

Surely every professional, male and female, takes pride in their appearance. Who, realistically, picks their most hideous picture for a professional profile? The problem is that it is women whose intellectual attributes are side-lined by their aesthetic ones – something which is hardly ever the case for men.

Would such comments be viewed as so wildly inappropriate, had they been sent via another social media medium, such as Facebook or Twitter? I think not. But then why is it acceptable to objectify women at all, as opposed to just professional women in a professional setting? As someone who has been unprofessionally approached on LinkedIn myself, I found myself wondering, what on earth do these people think LinkedIn profiles are for?

My personal summary does not boast my romantic status or how I enjoy long walks in the park, it lists my professional skill set. I have a well-presented profile picture because I want to create the best possible first impression and not (unbelievably) in a bid to attract prospective dates. This, for me, is the issue.

There are some men – by no means all, but some – who do not appreciate that their comments not only devalue women, but also women’s opinions of men.

Nevertheless, some men feel it is acceptable to objectify women to their faces. This is why I believe that calling people out on such behaviour is entirely right. Proudman’s reaction was strong, and one I can wholly sympathise with. However, this strength has undoubtedly been undermined by the ‘anonymity element’, and plays directly into the hands of those who would dismiss feminist stands as overreactions or political correctness gone mad. I do not believe that militant feminism serves to help the cause, and I fear examples such as this one actually perpetuate and exacerbate another message: don’t say it to their faces.

The backlash against Proudman (which included a senior male partner publicly stating that she had ‘blacklisted’ herself from receiving work from him) appears to reaffirm that women who take a stand against sexism are widely viewed as being an inconvenience.

A very pertinent question is whether it is right that women should feel restrained in the way they take a stand against sexism, for fear of being dubbed a ‘troublemaker’. It is not a straightforward question. It is true, though, that the way in which you express your viewpoint can easily affect its validity and, therefore, it is imperative to make your point in such a way that it does not leave scope for criticism.

A US judge has “strongly recommended” that a group of luxury goods makers, including Yves Saint Laurent and Gucci continue with attempts to mediate the group claim against China’s largest e-commerce entity, Alibaba Group Holding (“Alibaba”). The claim relates to the sale of counterfeit goods by Alibaba worldwide.

The claim was filed at Manhattan Federal Court in May and alleges that Alibaba was aware of counterfeit goods being offered for sale on its websites and had conspired to manufacture, offer for sale and traffic such goods, under the claimant’s trade marked names, without the permission of the claimants.

Alibaba has been the subject of numerous complaints from business worldwide in relation to counterfeit goods. Prior to entering the US online market in September 2014, Alibaba removed 90 million listings which it was alleged had infringed intellectual property rights.

The claimants are seeking damages and an injunction in relation to Alibaba’s alleged illegal business activities and trade mark infringement.

Despite initially offering to mediate, comments by Alibaba’s executive Chairman were published in Forbes magazine two weeks ago which suggested there would be no settlement of the claim. An Alibaba spokesman later explained that this comment was made before the offer of mediation was accepted. However, the claimants wrote to the Court last week and explained they now considered mediation to be a ‘futile exercise’ designed only to ‘force [the] Plaintiffs to expend resources’.  The claimants requested that the obligation upon them to mediate their claim be removed.

The Court recognised that “needless public comments can undermine talks” but despite this “the Court strongly recommends that the parties proceed to mediation”.

The Court’s response appears to follow the position of the English Courts in placing a strong emphasis on the importance of mediation in all cases and setting a high threshold for parties to overcome in order to show that mediation is not worthwhile. It will be interesting to see whether settlement can be reached or if the claim will proceed to Court.

We will keep you updated on the progress of this case.

This article, authored by Andrew Oldland KC and barrister Nicola Canty, from the Firms Marine Regulatory team, has been featured in the November edition of Marine and Maritime Gazette.

The Department for Transport (‘DfT’) is currently inviting a second round of applications from harbour authorities for any harbour in England and non-fishery harbours in Wales seeking to be designated with the power to give harbour directions under section 40A of the Harbours Act 1964, as amended by section 5 of the Marine Navigation Act 2013.

A harbour authority has duties to safely manage and efficiently run its harbour. It has particular responsibilities in relation to the safety of vessels and people within the harbour, efficient navigation and the protection of the port environment.

In addition to the powers available to harbour authorities under local legislation, (such as byelaws, special or general directions and, for competent harbour authorities, pilotage directions), a designated harbour authority may use harbour directions to regulate ships within their harbour, or ships entering or leaving their harbour. Harbour directions may relate to the movement, mooring and unmooring, equipment (including nature and use) and the manning of ships.

Why apply?

Before the 1964 Act was amended, the only way in which a harbour authority could be granted the power to make general harbour directions was through a Harbour Revision Order (‘HRO’) (under section 14 of the 1964 Act), or by means of a private bill or local Act. These limited options were viewed by the DfT to be out of date and unnecessarily costly and complex. Therefore the new mechanism was introduced under section 40A of the Harbours Act.

This mechanism is a faster and considerably less costly way for a harbour authority to apply for the power to make harbour directions. The harbour directions power is an additional tool to meet the harbour authority’s statutory duties, and the procedure for making harbour directions is more straightforward than the alternative of making harbour byelaws, which must first be confirmed by the Secretary of State.

Review of powers

The letter of application will need to include an explanation of why a particular harbour authority considers the power to make harbour directions is needed. From a practical standpoint, it may be necessary for a harbour authority to undertake a review of its local legislation to evaluate existing statutory powers to ensure that they are still relevant to the safe operation of the harbour. The Port Marine Safety Code (PMSC) recommends that additional powers should be sought by a harbour authority if a risk assessment concludes that this would be advisable.

If the applicant harbour authority has existing powers of general direction which overlap with the proposed harbour direction powers to be conferred under section 40A of the Harbours Act 1964, the existing powers of general direction would need to be repealed. Therefore an applicant harbour authority is required to provide details of any provision in a Local Act which would need to be amended or repealed that would otherwise be inconsistent with the power being applied for or unnecessary as a result of the power (section 40A(7) of the Harbours Act 1964 permits the Secretary of State to include such amendments or repeals in a Designation Order).

In addition, copies of relevant Local Acts and Orders should be provided with the application. In particular, relevant provisions containing descriptions of the harbour limits should be included.

Consultation

An informal consultation should be conducted with harbour users to address the suitability of the applicant harbour authority making the application, in addition to the powers that would be covered. The outcome of this informal consultation should also be included in the application.

The DfT also requires a list of any existing or proposed Port User Group (PUG), in addition to other relevant local and regional organisations to be contacted in the DfT’s formal 4-week public consultation. The DfT consultation would address the consultees’ views on the suitability of applicant harbour authorities (whether it is a fit and proper Body to be designated with the power to give harbour directions) and the suitability of the proposed PUG arrangements at the harbour, with any further additional comments invited.

Applications

Michelmores has assisted in drafting successful applications in the first round of applications for harbour authorities. The timetable for the second round of applications is set out on the DfT’s website, with expressions of interest invited by the end of January 2016 and applications proper by the end of March 2016.

Background:

The Property Protocols website, a source of high-quality, free professional advice covering various aspects of the property industry, recently published a protocol to deal with Applications for Consent to Assign or Sublet.  The document is succinct and practical, providing a simple framework for the process of obtaining Landlord’s consent.  Consent to assign and sublet is necessary in the vast majority of leases and the protocol aims to provide a clear process for both parties to follow, complete with timescales and checklists.

Uses:

The protocol sets out to clarify an area that is otherwise only bounded by the landlord’s ‘reasonableness’ – which itself would ultimately be for a Court to decide- but long before that point there needs to be a sense of direction and clarity for both parties if the assignment or subletting is to proceed smoothly.  The protocol therefore sets out some check-list style points such as the information the tenant is to provide at the outset, what triggers the need for superior landlord’s consent and the information the landlord should cover in replying to the application.  By the author’s admission, the protocol is not exhaustive, but as it is an unenforceable, voluntary procedure it is not designed to be exhaustive; more informative.

In terms of remedies should the process go wrong, the protocol suggests Alternative Dispute Resolution over litigation and proposes a number of ways this might be carried out, including some useful starting points for those looking for a mediator.

It is possible that those most likely to agree to follow the protocol are those least likely to run into difficulties, but having a clear timetable from the outset cannot hinder a transaction.  Should one party not wish to follow the protocol there is still no reason why the other couldn’t use it for guidance.