The changes in planning obligations required for sites of 10 homes or less have arisen following a Government consultation in March this year. The stated reason for the changes is that they are designed to address concerns about the disproportionate burden on developer contributions on small-scale developments.

David Richardson and I have been considering the changes and have concluded that they are not as wide reaching as they first seem.

What the changes have done is to remove the burden of “tariff based contributions” (referred to as Section 106 obligations) on developments of 10 or less units.

As a key point, we have concluded that “tariff style contributions” in this context do differ from “CIL”.  There are a couple of reasons for this:

• the CIL Regs do not have a de minimis threshold- the idea being that CIL brings in more money than s106 did; and
• if the Government meant CIL they would have said CIL- the consultation is about ‘section 106 obligations’, and CIL is not a s106 obligation but a separate charge.

So the changes do not remove the requirement to pay CIL. But they do mean that obligations imposed by local authorities towards wider infrastructure cannot be requested.

In terms of affordable housing, it looks like it will come down to local policy.  If local policy requires on-site provision, than it would seem that can still legitimately be requested.  If local policy is to seek a contribution for off-site provision then that will fall within the exemption, and so will not be a legitimate request.

Also, the changes do not prevent the local authority from seeking any planning obligations on developments under the 10 unit (or 5 unit- see next para) thresholds. So contributions which relate to site specific infrastructure e.g. improvements to road access, street lighting etc. can be requested if they will make the development acceptable in planning terms.

The changes do not apply to development on rural-exception sites. Nor do they apply to designated areas under section 157 of the Housing Act 1985, which includes National Parks and Areas of Outstanding Natural Beauty- in this case local authorities have the option to choose to apply to a lower threshold of 5 units or less.

There is no obligation on LPAs to re-open negotiations on sites already consented, but there is also nothing which restricts the making of a new application on a site which is already consented. So developers will be considering renegotiating any existing obligation- with a backstop that they re-apply!  As always, until someone litigates on this, it is all a bit up for grabs!

The changes have been applied to the National Planning Policy Guidance (“NPPG”) and came into effect on 28 November 2014.

For more information please contact Mark Howard, partner in the Planning team at mark.howard@michelmores.com or on 01392 687621.

Setting the scene

“The tree which moves some to tears of joy is in the eyes of others only a green thing that stands in the way. Some see nature all ridicule and deformity… and some scarce see nature at all. But to the eyes of the man of imagination, nature is imagination itself.”

William Blake

At the outset, and rather not in keeping with the received thinking of my profession, I am going to nail my colours to the mast and declare myself an out and out tree enthusiast. Don’t get me wrong, I am no green activist, I like a good road scheme as much as the next lawyer/surveyor.  My common frustration is that a tree which is a thing of beauty and amenity is often given a crew-cut by an occupier of land with sometimes misplaced concerns that it might be secretly dangerous.

As the case law which I am about to outline shows, occupiers of land should not be put by the law into a position where they feel the need to be ‘insurers of nature’ where it comes to trees. What has prompted all of this is the recent case of Stagecoach South Western Trains Limited v Hind and anr.

The case concerns Rose Cottage, a property in Staines owned by a Ms Hind. Rose Cottage backed onto a railway line, where on or near the boundary a mature Ash tree grew. On a windy winter night part of the Ash tree blew down, falling across the railway line. Shortly afterward an empty train collided with the part of the tree on the railway line. The tree caused some damage to the train, for which the train company decided to seek damages from Ms Hind. Ms Hind had recently commissioned some work on the tree, which was undertaken by Mr Steel, a tree surgeon. Evidently not wanting to miss an opportunity one train company also sought damages from Mr Steel and it was unsuccessful in that regard.

The Honourable Mr Justice Coulson, in the sort of lucid and carefully considered judgment which only a Technology and Construction Court Judge can give, summarised the law applying to Ms Hind’s position as follows:

(a) The owner of a tree owes a duty to act as a reasonable and prudent landowner;

(b) Such a duty must not amount to an unreasonable burden or force the landowner to act as the insurer of nature. But he has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes;

(c) A reasonable and prudent landowner should carry out preliminary/informal inspections or observations on a regular basis;

(d) In certain circumstances, the landowner should arrange for fuller inspections by arboriculturalists. This will usually be because preliminary/informal inspections or observations have revealed a potential problem although it could also arise because of a lack of knowledge or capacity on the part of the landowner to carry out preliminary/informal inspections.

(e) The resources available to the householder may have a relevance to the way in which the duty is discharged.

Ms Hind was an enthusiastic gardener, and took an active interest in the care of her trees.  Over the period 2001 – 2009 she had spent over £4,000 on tree surgeons for her garden. Some of the work which Ms Hind had commissioned involved cutting the deadwood from the offending Ash tree, and generally keeping it tidy. However the defect in the tree which caused it to fall on the railway line on that night resulted from an ‘included bark union’ in one of two stems forming the main trunks of the tree. The Judge found that this would not have been an obvious concern to a reasonable and prudent landowner, and in any event, in this instance the offending area was covered by a thick layer of ivy. In this case the train company was unsuccessful.

Although Mr Justice Coulson provided an eloquent summary of the law, some queries remain.  Does ‘the duty to act where there is a danger which is apparent to him and which he can see with his own eyes’;  means that the characteristics of the reasonable and prudent landowner are always those of an amateur? Some commentators seem to indicate that a ‘large and well resourced’ landowner might be expected to have an army of expert arborialists surveilling every bough and twig for hidden hazards on a very regular basis.  I think that would be an overstatement of the duty imposed by the common law even upon large institutional landowners.

Mr Justice Coulson referred to some of the case law and quoted from it as follows:

 “…If there is a danger which is apparent, not only to the expert but to the ordinary layman which the ordinary layman can see with his own eyes, if he chooses to use them, and he fails to do so, with the result that injury is inflicted, as in this case, upon somebody passing along the highroad, the owner is in those circumstances responsible, because in the management of his property he had not acted as a normal reasonable landowner would act.”

“An unreasonable burden must not be placed on the reasonable owner: “the standard to be taken should be that of an ordinary landowner and not an expert. It was neither the duty nor the practice of the ordinary prudent landowner to make a meticulous examination of its individual trees.”

Yet there is a notion of a requirement for a large organisation to have trained arborialists roaming the grounds of their estates ticking boxes indicating the presence of ‘actively lifting root plates’ and the like. Unfortunately there are conflicting authorities on the matter.

In one House of Lords case in 1952 it was said:

“The test of the conduct to be expected from a reasonable and prudent landlord sounds more simple than it really is. For it postulates some degree of knowledge on the part of landlords which must necessarily fall short of the knowledge possessed by scientific arboriculturists but which must surely be greater than the knowledge possessed by the ordinary urban observer of trees or even of the countryman not practically concerned with their care.”

On the other side are a host of cases (which go no higher than the Court of Appeal) and seem to take as read that an ‘expert’ should be employed to conduct regular detailed inspections of each and every tree. Bowen v National Trust for Places of Historic Interest or Natural Beauty might be said to proceed on this basis, although the manner in which the inspections were carried out was not impugned. Chapman v London Borough of Barking & Dagenham proceeded on the basis that the Council should have had an ‘expert’ examine the offending horse chestnut tree, and then based upon this initial examination decide whether or not to climb it for a closer look. Finally in Poll v Viscount Asquith of Morley, and anr a multi stemmed Ash tree fell into a road causing Mr Poll to hit it on his motorbike and suffer injury. That case was presented to the High Court on the basis that there were three levels of tree inspector, and the Court found that the appropriate level of inspector would have been a ‘level two’ which on any account would appear to be a more accomplished ‘tree person’ than the individual postulated by the House of Lords in 1952.

These later cases might be explained by comments that appear in an occupier’s liability case to the effect that a ‘higher’ standard of care might be expected of a “…large organisation with ample staff…”

Recent Guidance

The correct basis for defining the duty is as set out by Mr Justice Coulson in Hind where he commends the HSE guidance published on the topic:

55 The other document was the SIM 01/2007/05 published by the Health and Safety Executive (“HSE”). This document is principally aimed at local authorities and those dealing with trees on a regular basis. It sets out to balance, on the one hand, the benefit and value of trees, with the “limited” risk that they pose. At paragraph 7 of the document, the HSE say:

“Given the large number of trees in public spaces across the country, control measures that involve inspecting and recording every tree would appear to be grossly disproportionate to the risk. Individual tree inspection should only be necessary in specific circumstances, for example where a particular tree is in a place frequently visited by the public, has been identified as having structural faults that are likely to make it unstable, but a decision has been made to retain it with these faults.”

At paragraph 10(ii) the guidance goes on:

“For trees in a frequently visited zone, a system for periodic, proactive checks is appropriate. This should involve a quick visual check for obvious signs that a tree is likely to be unstable and be carried out by a person with a working knowledge of trees and their defects, but who need not be an arboricultural specialist.”

Would the effect have been obvious?

In another tragic case the bough of an old oak in Windsor Great Park fell upon a father, Mr Imison, who was unloading bicycles from his car in order to go along with his family on a bicycle ride. Mr Imison’s injuries were fatal.  It is of interest that the defendant (Surrey County Council) was responsible for 3,600 miles of roadway bordered by some 2 million trees; in 1975 Central Government had issued a circular to it as a Highway Authority to the effect that it should conduct inspections of such trees. 29 years later, and around three years before the tragic accident befell Mr Imison, the defendant engaged someone to do that job; however he had not yet made it to the offending tree.

The Court, following the 1952 House of Lords decision concluded that whilst the defendant had failed in its duty to inspect the trees for which it was responsible, the defect which caused the bough to fall upon Mr Imison would not have been obvious upon making the appropriate inspection. The defendant was not liable.

In this case, it is noteworthy that the defendant had all but destroyed the remnants of the bough which had fallen. If such a terrible event should occur, occupiers must put in place procedures to ensure that evidence is preserved.

Location, location, location?

The final matter arising from the analysis above is whether or not a tree in a particularly high risk location (such as at school gates) should be inspected more invasively than one in an isolated location? It would not appear so.  Mr Justice Coulson’s found that Mrs Hind did not have to obtain an expert’s opinion upon the state of the Ash tree at the bottom of her garden just because it bordered a railway.  Nevertheless it is clearly good practice however to conduct inspections in high risk areas on a more regular basis, particularly in where such trees are susceptible to disease, drought, or storm.

Conclusion

The decision of Mr Justice Coulson has helped calm some hysteria that had arisen as a consequence of some of the preceding cases.  However, none of this changes the established principle that in the event a tree has have obviously dangerous features, an occupier of land should commission an expert to look at it in more detail, and if necessary take steps to mitigate any risks posed by that tree.

Housing land supply in the UK is struggling to keep up with the growing demand for new homes – and as a result, there will be huge pressure on the next Government to get building. The big question is – where are we going to source the land needed to build these new homes, and what are the implications for the South West?

With a general election on the horizon, we asked Jo Davis, senior director at GVA, for her thoughts on what this means for the South West, what the best opportunities are for sourcing new land in the region.

What is the situation in the South West?

There’s no doubt that we have a housing problem in the South West.  After the abolition of the Regional Spatial Strategies (RSS), the South West councils collaboratively reduced their housing numbers by 18.3%, from what was originally proposed by the RSS.  That’s about 100,000 houses down on what we need, based on the demographics of the region.

Looking at Exeter in particular, housing numbers were looking good against their five-year housing land supply – until the recent decision in Pinhoe in September, where it was concluded that Exeter City Council not able to include student numbers in their five-year housing supply plan.  Therefore, the number of houses delivered during the recession, (899 in 2011/12, 473 in 2012/13, 555 in 2013/14) – looked brilliant against the annual target of 600 dwellings −  but only because it included student housing numbers.  This led to the housing land supply from 1 September 2014 dropping from 6.7 percent, to 3.6 percent.  As a result, the housing target per annum has moved up to 869 units per annum and the heat is on the housing land supply.

Where will new sources of land come from?  

There are a number of opportunities to provide this housing in a sustainable way, with the most important being:

Brownfield 

Using brownfield sites is a popular route and can be an easy win, but in reality there’s not much brownfield land available in the region.  Only nine out of 36 authorities in the South West have a National Planning Policy Framework (NPPF) compliant plan – so there are a number of opportunities to find non-allocated sites for housing.  Finally, there is a massive oversupply of employment sites in the sites allocation for the region, providing even more potential.

Estate renewal

Estate renewal provides great scope for development.  There are less potential sites in the South West, compared to other regions in the UK, but the opportunities that do exist, look promising.  Estate renewal takes longer, is outside the ‘norm’ and requires partnerships, but the reality is these partnerships are very simple, and the benefits lead to a significant land value uplift.

A good example is the MOD Fox Hill site in Bath.  Part of a 14 year programme, the developers are about to build 1,200 new homes, also refurbishing a further 700 homes.  This project has been very positively received both from the council and the community – and this model is a real consideration for the South West.

Greenbelt

Currently, greenbelt land sits in the ‘too difficult box’ − but this will have to change after the election if we are going to deliver these ambitious targets outlined by the main parties.

The key to unlocking greenbelt, will be assembling strong evidence to support its release, and ensuring the local planning authorities undertake the exercise of review in a robust way, which avoids challenge and risk.  Key locations will be Bristol, Taunton, Exeter, Plymouth and probably Truro.

Neighbourhood plans

Neighbourhood plans and localism are here to stay, and this is where I see the biggest opportunity for securing new sources of land.  Nevertheless, this will be a big challenge and in turn, will be a big change in the way we do things currently.

The emphasis put on neighbourhood plans by all parties is strong, so we will soon be launching a ‘neighbourhood toolbox’ to assist developers and landowners to influence and shape neighbourhood plans.

Large-scale urban extensions

Something we’re great at in the South West, is delivering large-scale urban extensions, which look set to take the place of garden cities.  Garden cities are being dismissed on three grounds:  planning is complicated and takes too long, cash flow of developers, and the challenge of putting together consortiums to make the schemes work can be prohibitive.  Whilst you will hear people talking about garden cities, it’s well-planned urban extensions, in the right locations and right sustainability credentials, where the focus will lie in terms of growth.

They key to achieving these large-scale urban extensions −which all the parties are talking about – will be the streamlining of the planning process, to help us deliver them far more successfully.

What direction is housing policy likely to take after the 2015 elections?

At the September 2014 Party Conferences, the Conservatives looked set to continue their success in streamlining the planning system in terms of disused land, focusing on permitted development rights through empty offices and probably, pushing that forward into public land too.  Interestingly, there was complete radio silence on the garden cities position.

In contrast, the Liberal Democrats took up the garden cities mantra, proposing 50,000 new homes across five garden cities to run along a rail line between Oxford and Cambridgeshire.  A bold and ambitious plan, but is it realistic, or just rhetoric?  I’ll leave you to decide.

Meanwhile, the Labour party hailed house building as one of its six national policy goals for the next ten years, with Ed Milliband saying by 2025 the UK would be “building as many homes as it needs… we will deliver 200,000 homes per annum by 2020.” – another ambitious target.

Of course, we won’t know anything for certain until the outcome of the election, but it’s clear that increasing supply will remain a priority for all parties.  Previously Developed Land (PDL) will be a key focus pre-election − as nobody wants to talk about greenbelt in the run-up to election, however, we expect it to jump quickly back on the agenda post-election.

What’s next?

We’re entering the perfect storm – the South West planning policy position is vulnerable.  There’s a proven oversupply of employment sites, a very limited robust five-year housing land supply, and there’s a national policy push for housing.  This provides developers with a great opportunity to go in there and be ambitious about what they are trying to achieve – identifying sites slightly outside of the box, and pushing them through the planning process.

The brownfield sites that we’ve got available in the SW aren’t big enough, so we need to be looking for the right site to house the next Cranbrook, because in reality these sites take 10-15 years to germinate.  This means starting now, working with the neighbourhood partnerships and the communities from the start.

Putting policies and opportunities to one side, the key to successfully reducing this pressure and build more homes, is going to be the streamlining of the planning process moving forward.

COBS 11.2 requires a firm to take all reasonable steps to obtain, when executing orders, the best possible result for its clients taking into account price, costs, speed, likelihood of execution and settlement, size, nature and anything else relevant.

The importance of different criteria can vary depending on the type of investment and would be different for stocks, bonds or options. For example, the type of investment would dictate whether it is traded on an exchange or over the counter which introduces a timing issue. A high total volume of trades will impact on price and require a series of trades (usually dictated by an algorithm). There may be a short term supply and demand problem or a company specific press release or news item.

Forced sales, margin calls and highly leveraged positions require these issues to be weighed up together. Especially where positions cannot be unwound in a single day’s trading. The most common causes for complaint relate to the impact of trades on the market, balancing price slippage with frequency of trades, not following an internal policy and calculating the missed opportunity cost of the best alternative option. In other words, would better prices have been achieved “but for” the poor execution?

This can be analysed by comparing the average market price achieved with the actual price achieved. Volume Weighted Average Price (VWAP) is the average cost of the investment during a trading period – calculated by multiplying the number of shares purchased by their share price and dividing by the total number of shares bought. A financial institution may have their own VWAP. If the price of a sell trade is higher than the VWAP it is a good trade and the opposite is true if the price is lower than the VWAP.  In a falling market it may have been difficult to outperform this benchmark but in a chaotic or disrupted market following a news event or announcement there is more opportunity to do so.

The collapse of Lehman Brothers caused an uncontrolled cascade of closeouts and automatic termination of derivatives. However, it can be difficult to estimate whether any losses were caused as a result of poor execution because of a lack of historic market data as to whether quotes could have been traded or were indicative only. Obtaining this data is important for putting a firm value on any claim and, if the investment is listed on more than one market, may be derived from a secondary exchange or market.

Jonathan Kitchin is a member of the Commercial & Regulatory Disputes team and can be contacted on jonathan.kitchin@michelmores.com or 01392 687635.

In a recent case of great importance to retailers, it was recognised that: “the internet has become an increasingly important channel of trade in counterfeit goods”.

Whilst trading standards would usually pay a visit to those identified as selling counterfeit goods in their stores, the position quickly becomes complicated when retailers attempt to prevent counterfeit sellers (potentially operating in a number of different countries) offering goods for sale over the internet rather than in-store.

How can retailers fight back against online counterfeit sales?

Almost everyone will have heard about the blocking of illegal file sharing sites such as The Pirate Bay and Newzbin, which were blocked in order to protect the copyright of those producing digital content. The trade mark on the other hand, protects names and logos, a key part of any business’ brand.

In the first case of its kind, the courts recently ordered the blocking of a website in order to protect a trade mark, preventing access to a number of websites selling counterfeit Cartier jewellery and Mont Blanc pens. During the case, the court recognised the importance of trade marks and that their infringement through the sale of counterfeit goods had the potential to damage brands in four ways:

1. lost sales;
2. loss of reputation, particularly in the eyes of those who receive the counterfeits as a gift, believing them to be the real thing;
3. eroding the sense of ‘exclusivity’ associated with the brand; and
4. damaging the confidence of consumers across the wider market.

Whilst the retailer applying for the blocking order will have to bear the costs of the application, it will be the Internet Service Providers (the likes of Sky, BT, Virgin and TalkTalk) who will be responsible for the costs of implementing the technical measures necessary to actually prevent their subscribers from accessing the counterfeit websites. This marks a significant step towards helping retailers protect their brand and products, and we are likely to see similar applications from others looking to protect their Intellectual Property in the future.

Will the blocking make a difference?

Blocking file sharing websites for the purposes of copyright protection hasn’t proved as successful as some might have hoped. This is principally because those with the technical ability to use the file sharing sites in the first place are likely to also have the ability to circumvent the blocking measures.

Blocking sites in order to protect trade marks, however, is likely to prove more successful. These measures affect a much wider demographic of people, many of whom are unlikely to be able to circumvent the blocking measures.

With just two weeks to go, limited places are still available for the annual Michelmores Employment Law Conference − aimed at businesses and organisations looking to keep up-to-date with the very latest changes in employment legislation.

The conference, which takes place on 13 November 2014 at Sandy Park Conference Centre, draws a wide range of delegates from across the South West, including employers, HR professionals and directors from the public, private, education and charitable sectors.

Topics under discussion will include holiday entitlement and calculations, and controlling social media − as well as a comprehensive review of the key legislation changes from the last 12 months.  The conference will also welcome guest speaker Tony Cooper, Director of ACAS South West Region, who will provide a comprehensive update on early conciliation, the negotiation process and Tribunal statistics.

Michelmores’ Partner and Head of the Employment team, Andrew Tobey, who will chair the conference, said:

“Employment law issues touch all levels and types of business, from workplace disputes through to corporate acquisitions, and few areas of the law are as fast changing and dynamic. It is essential for today’s HR professionals and other employers to fully understand recent changes to employment law and the impact that these changes will have on their businesses and organisations.  Now in its 13th year, the conference has proved to be ‘must-go-to’ employment events, and we are looking forward to a record turnout this year.”

Andrew Tobey will be joined by other specialist lawyers from the Michelmores Employment Law team, including Partner Tim Davies, along with Associates James Baker and Tom Stenner-Evans.

The half-day conference takes place on 13 November 2014 at Sandy Park Conference Centre, starting at 9am.  Places cost £50 and include a buffet lunch.

The deadline to book tickets is Monday 10th November.  To register for the event, please visit our website.

Feeling a little lost when it comes to law fairs?  I expect you are not alone.

Having attended a number of law fairs as a student, I know that the experience can be quite overwhelming and it can be difficult to know where to start. But for me, visiting these fairs was a positive experience and definitely helped to kick-start my law career, having first met Michelmores at the Cardiff Law Fair in 2011.

Law fairs are not just about re-stocking your stationary pot with branded pens and USB sticks (although this is a definite perk), they are much more valuable than this. They are an opportunity for selling. Recruiters strive to sell their firm to the best quality candidates and equally, students want to sell themselves to potential employers.

To help you calmly navigate your way around the maze of recruiter stands, I’ve put together a short guide on how to get the most out of a law fair.

Before the law fair

Yes, I know you’ve heard it all before, but preparation is important. Unless you already have an excellent knowledge of the law firms attending, I recommend conducting some background research:

1. Review the list of exhibitors (your university will normally have a list online)
2. Shortlist potential ‘target’ firms.  It is very unlikely you will have time to talk to everyone so make a list of a half a dozen or so which particularly interest you
3. Research the firms on your shortlist.  The Lawyer recommends identifying the following:

where the firm is headquartered;

• how large it is in terms of partner numbers and turnover;
• how many overseas offices it has, if any;
• how many trainees it typically recruits; and
• the practice areas it focuses on.

As a bare minimum you should review the firm’s website but I would also suggest browsing legal press such The Lawyer and Lawyer2B, the firm’s presence on social media, rankings in Chambers and Partners (in order to find out in which areas of law your chosen firm has its strengths), Lex 100 (for trainee perspectives on life at the firm) and for a bit of light-hearted insider gossip, RollonFriday.

At the law fair

Walking into a room filled with 40+ exhibitors can feel overwhelming. However, armed with your new list of targets, you should feel much more focused and able to confidently approach delegates with a decent knowledge of their firm  Some points to remember:

• Arrive at the law fair early. Presuming that not everyone will take this advice, law fairs tend to get very busy a few hours in and you may have to queue to talk to exhibitors
• Approach exhibitors on your own. As tempting as it is to walk around with your friends, this will only hinder your ability to get the information you want and stand out as an individual
• Ask the delegates interesting questions. As a student I was told not to ask a question if I could find the answer to it online − and remember thinking this was an impossible task given that you can find out almost anything online! Having said that, there should be at least a few points raised from your research that you would like to know more about, be it the firm’s ‘ambition’, it’s clients, sectors or secondments. If you are really stuck, remember that at least one of the delegates is usually a future or current trainee – this is essentially you in a few years time, so asking the trainee how they are getting on is an excellent way to find out about your potential future career
• Take a pen and paper and make a note of the people you have spoken to. This will come in handy when it comes to making applications for Vacation Schemes and Training Contracts
• Dress smartly.  This should go without saying but all too often I have seen people turn up in joggers and UGG boots. Although a good first impression will probably not result in an immediate job offer, many firms make a note of people that impress them. If your application is one out of hundreds, even thousands, this might be the difference that gets you an interview.

After the law fair

Hopefully, the law fair will have helped you identify the firms which you would like to work for, but it is important that you do not sit on this information until the last minute. Here are some things you might want to consider:

• Be aware of the opening and closing dates for applications to your chosen firms. Many firms accept Vacation Scheme applications from November so you may be able to apply straight away
• If you are in a position to make an application, why wait? Deadlines for Vacation Schemes often fall in January, amid coursework and/or exams, so if you can submit an application now, this will save you stress later on
• If you feel that you are not in a position to make an application now, ask yourself “why not?” and seek to remedy this. If you think you are lacking in work experience, make a conscious effort to gain more experience between now and the application deadline. Get involved in your Law Society, do some voluntary work – it doesn’t have to be legal, just something to make your application stand out!
• Finally, if appropriate, mention who you spoke to at the fair in your application as this will help demonstrate your interest in the firm.

This year, I will be attending the Reading Law Fair on 5 November 2014 and my fellow trainees Holly Dobbins and Sarah Duke will be at the Cardiff Law Fair on 4 November 2014, along with Kim Tomlinson and Gabby Essame from Michelmores HR team. If you are interested in finding out more about life at Michelmores, please do come and say hello!

Michelmores has advised Barnstaple based engineering business J+S Ltd in the sale of the company to SEA, a trading subsidiary of Cohort Plc, for £12 million.

J+S Ltd operates from sites in Barnstaple and Aberdeen, and is a leading UK supplier of independent engineering solutions and in-service support operating within the naval support, marine renewable and oil and gas sectors.  Earlier this month J+S announced that it has been selected to supply the Torpedo Launcher System for the new Royal Malaysian Navy.

Michelmores has acted for J+S Ltd since 1999 when the firm advised the management-buy-out team and subsequently acted for the company in its refinancing and share buy back transactions in 2002 and 2008.

The business originally specialised in supplying defence equipment to the Royal Navy including sonar systems and weapons handling and discharge systems but in recent years has successfully diversified into the oil and gas sector and marine renewables

Michelmores partner Samantha Billingham, said:

“J+S Ltd are a very dynamic and profitable business and a real asset to the South West economy. It has been ranked as one of the region’s top performing companies and is amongst Devon’s largest employers.

“Michelmores has had a long journey with J+S and we are all delighted to have been associated with this latest successful transaction.”

This article was first published in Private Client Adviser on 22 August 2014 and is reproduced by kind permission (www.privateclientadviser.co.uk)

Following Macfarlanes’ announcement last month of their plans to leap aboard the innovative bandwagon that is CV-blind interviewing, I felt that this new practice needed considered analysis. The way in which law firms recruit candidates for training contracts is understandably a ‘hot topic’ of trainee-focussed literature, and having penned several blogs providing tips on getting a training contract, it seems prudent to consider whether CV-blind interviewing will affect the current advice that is available to applicants. My concerns centre on how the scheme will actually operate in reality and what, if any, benefits it will provide to candidates and employers.

Firstly, how will the graduate recruitment team ‘vet’ applicants for the interview shortlist? How can the risk of human bias be removed from this stage and not from the interviewers’ panel? In reality, doesn’t this mean that prejudice still occurs, just at an earlier juncture? Further, how will the ‘information gap’ between the graduate recruitment team and the interviewers be dealt with – will there be some form of Chinese wall in place to ensure information that may cause bias is not relayed? And what information will be allowed through, if any?

Surely it is only by gaining an understanding of an applicant as an individual that any interviewer can truly ascertain whether they are right for the particular firm? This means that essentially, aside from having the requisite qualifications, the context of an applicant’s educational background can be disregarded. Are interviewers really so blinkered that the very sight of a CV would limit their ability to see beyond it? I would argue that the exercise of going beyond the person on paper can, and should, be achieved without taking the paper away altogether.

This is my primary concern about the CV-blind process and the resulting ‘anonymous applicant’. Applications are not simply a box ticking exercise; rather they require not only detailed, but personal answers which help to convey unique information at the initial selection stage. Will interviewers still see the applications? Will the format of the application change to exclude background details and/or will there still be an opportunity to include anecdotes in your application form as it is only the interview that is ‘blind’?  There is a clear risk of an individual’s ‘application merits’ being lost in translation if this is the case. A meeting between those who vet the applications (the CV-sighted) and the interviewers (the CV-blind) would be required to facilitate a ‘joining up’ of minds in making a final decision.  However, doesn’t this negate the objective of the scheme? Or is the aim to provide a CV-blind vacuum in which the interviewers can formulate an unbiased opinion, to then be updated with pertinent application/CV information afterwards and as appropriate?

This brings me to another question that perhaps is too wide for proper analysis here: can you really tell if someone has been privately or state-educated? More importantly, if a distinction can be made, what exactly is it that you can deduce aside from the fact that their family had/did not have the money/desire to send them to a private establishment? It is commonly accepted that first impressions are formed in less than 30 seconds. However, this is within 30 seconds of meeting someone, not from finding out where they went to school. Further, although the school you attended may not be relevant at interview, surely the university is? ‘Lower ranked universities’ are indicative of an applicant’s calibre (and of school grades, which in themselves are indicative of commitment, capacity etc) and if the university admissions process is unbiased, then a first from Oxford is infinitely more impressive than my own 2:1 from Southampton!

Is it really impossible for people to simply make a conscious effort not to judge someone on their background? CV-blind interviewing purports to counter the bias within our psyche of which we aren’t even aware. Surely, when making a conscious effort not to judge, the remaining, uncontrollable bias of which you are unaware of is almost imperceptible in its nature? In my opinion, a CV ‘partially-sighted’ scheme might be more favourable, where information that is deemed relevant to inviting someone to interview is relayed, but information that is both non-essential and introduces a risk of bias is not.

In conclusion, the human element of the interview process means that there is always going to be scope for interviewers not only to infer things about people from their backgrounds, but also infer things about their backgrounds from their personalities. Will the absence of a CV really preclude this?

Richard Cobb interviews Simon Cornelius-Light, Divisional Director of ES Group (Exeter Branch) regarding the use of online and traditional auctions in the manufacturing industry, here is what he had to say…

Across our Machinery and Business Assets (MBA) team at ES Group, we have seen exponential growth in online auctions, over the past 5 years or so. We currently estimate that the ratio of physical to online sales sits in the region of one in every hundred sales.

Underlying economic factors have undoubtedly accelerated this growth in online auctions but the primary motivation is undoubtedly something more prosaic, linked to the basic practicalities of online versus traditional auctions.

Online auctions – pros and cons

Economically speaking, online auctions tap into a growing international audience attracted by the fluctuating pound. Interest from both European purchasers and emerging markets is sustaining values for second hand machinery, for example, where UK sales figures have been hit over in the past.

While these economic factors won’t last forever, the practical benefits of online auctions will. These include:

• an increasing familiarity of online auction systems, such as Ebay and others
• the trust that auctioneers have built up in the accuracy of their lot descriptions
• The ability and feasibility to market individual pieces of equipment which will benefit from the same extensive marketing exposure, as a collective sale
• intrinsic benefits to vendors of online auctions – indeed, having built up targeted sector-specific UK and international databases at ES Group over the past years, we can now market kit to the right people and secure quick, effective sales to an international market

The latter is perhaps the most important ‘pro’ point; where clients are still looking for timely and efficient returns for the sale of their surplus plant & equipment – and this is where online auctions come into their own.

Technology faults can have a detrimental impact on the success of an online auction, however very rare these days but as a factor this is largely insufficient to outweigh the reduction in client management and risk offered by:

• longer market exposure
• extended bidding times
• reduced cost
• reduced clearance periods
• ease of controlling defaulters

Traditional auctions – pros and cons

Compared with online auctions, live sales incur notably higher sale costs and resource issues. Live auctions require considerably more client management time, more purchaser site visits and have longer clearance periods. Returns are also often affected by buyers’ unwillingness or inability to attend.

It’s important to acknowledge, however, that for some vendors and buyers nothing beats the face to face contact offered by an onsite auction, the buzz of the auction room, and the skill of an auctioneer. And for some asset classes, notably agricultural and some stock type sales, the traditional auction will be the best disposal method, but these sales are becoming very far and few between and the traditional Auctioneer is becoming a rare breed.

For these both practical and nostalgic reasons, there will always be some onsite auctions – but the online alternative is here to stay. The auction houses that build the confidence of vendors and purchasers in online sales, and who use and build strong and targeted international databases of purchasers, will fuel this continued rapid online growth well into the future.

If you have a requirement to dispose or value your surplus machinery & business assets, please contact Simon Cornelius-Light, Divisional Director, ES Group (Exeter Branch) at simon.cornelius-light@es-group.com or 01392 880180

One of the fundamental questions you need to ask yourself when choosing the area you wish to qualify into is whether you prefer contentious or non-contentious law. Doing a seat in the area which combines the two may help you to understand which comes more naturally to you. This is the upshot of my current seat in Construction where my time is divided between transactional construction work and construction litigation.

The transactional (non-contentious) work involves procurement advice (how to set up the contracting structure for a project) as well as drafting and negotiating contracts and preparing other legal documents required for a project. As a firm we advise on insurance, environmental matters, insolvency, health and safety and all other considerations that crop up in construction.  As a trainee I review and amend drafts, attend meetings with clients and prepare advice which is then finalised by the partner. Amendments are made against underlying standard contacts and because there is a fair variety of them, every other draft I prepare is a completely unknown setting. It is a very scrupulous work and it is much more exciting than it sounds! Very rewarding too as once the contract is executed you know that you have achieved the result sought by your client.

Contentious construction is about providing advice if things go wrong because (generally) the contract wasn’t properly put in place and solving arguments over construction work and housing through litigation, mediation, adjudication or arbitration. The type of work I do involves drafting letters of claim and claims, preparing various court applications, taking witness statements, etc. Very conveniently, this could qualify as a litigious seat for qualification purposes provided that a certain amount of hours has been dedicated to litigious work. There is an opportunity to sit in Court with our partner Gerald Offen who is also a Deputy District Judge.

The two sides of my construction seats are very different not only as far as the type of work is concerned but also in terms of communication styles. My natural style is a more litigious one and it is very appropriate whenever I need to, for example, write a protocol letter before action to a negligent architect. It is, however, totally unsuitable for a letter to solicitors who are negotiating a contract with our client on behalf of their client-contractor. I had therefore to develop ability to adapt and change styles along with changing my contentious and non-contentious “hats”.

Clients are also very different.  For transactional work we act for project owners, subcontractors, surveyors, engineers, architects, who are planning, buying, funding, building, designing construction projects. They all are usually businesses – all generally sophisticated and each with a distinct set of risks in a project. They know their objectives much better than I do and working with them is really challenging. Getting to interact with a wide range of professionals is a great opportunity for a trainee as it provides an understanding of the industry’s needs from different perspectives. This comes with an extra requirement of being organised and diplomatic.

On litigious side we act not only for professional players but also for private individuals facing issues with their properties. Unfortunately this often happens because of devious cowboy builders and may be fairly emotional. As much as there are areas where lawyers deal with even gloomier situations, still, falling floors and rotten corners in somebody’s home does have a direct effect on people’s lives, their health, their long-term plans and definitely on their finances. We are there to help and we of course are expected to be as efficient and proactive as possible. Trips to building sites or to the clients’ properties in a disastrous condition can occur relatively often and having a spare pair of flat shoes in the office is a good idea! It is an ideal area of law for lawyers who do not want to be confined to offices all day.

Construction is considered a niche area in law and it is not an easy area at all. I have not studied construction during my degree or my LPC – and many of you would not; for this reason at the start of the seat most trainees know very little about this type of law and its intricacies. But not to worry – your firm will be aware of this and will give you necessary time to do some basic reading to acquire an initial feel of it. I have been gradually developing an understanding of the building industry and even of basic engineering with the help of a supervising partner, Brian Hitchcock, who trained and qualified as an engineer before becoming a lawyer. This is a completely new knowledge for me – as it would be, I imagine, for many of you as most of us were doing purely humanitarian subjects from post GCSE age. It is an intellectually challenging area but surely we all like challenges – otherwise why choose law in the first place?

My final hint – this area is a strategically wise choice. The construction industry faced difficulties during the recent credit crunch, which caused a decrease in the number of lawyers qualifying into construction law. The industry has substantially picked up lately and continues growing but there are not enough newly qualified construction lawyers out there. Isn’t that a good enough reason to consider construction law as a potential speciality?

A growth in counterfeit goods was widely reported in the run up to Christmas last year. If you have a strong brand for your products or if you are selling products that are leading brands, you cannot afford to ignore the risks of counterfeit products appearing within the markets in which you operate.

There are a number of measures that can be taken to prevent counterfeiting.

Protect your intellectual property rights

The first step in preventing counterfeiting is to make sure that your intellectual property rights are protected.  If you have not done so already, you should obtain legal advice to ensure that you are adequately protected.

Intellectual property is a collection of distinct legal rights, each protecting different components of the creativity, innovation and investment which its owner’s work represents.

As a simple rule of thumb:

• patents apply to inventions only, and not names, titles, logos or literary or artistic works;
• trade marks protect names or logos;
• designs protect the outward appearance of your product and packaging, including colours, shape, texture, decoration, lines and materials;
• passing off aims to prevent anyone falsely presenting their goods or services as someone else’s goods or services;
• copyright protects literary and artistic works, as well as films, television programmes and music.

Patents, trade marks and registered designs must be registered in order to obtain protection.  Having a registered intellectual property right can make enforcement of your intellectual property rights easier.

An appropriately qualified lawyer can work with you to create a system of checks that allow new intellectual property to be identified early, protected through confidentiality and, where possible, registered.

Create an awareness of intellectual property rights in your organisation

Raising and maintaining awareness of issues relating to intellectual property is essential.  Your staff will then have a better understanding of how the products that they sell and/or manufacture are protected.  They will also be better able to recognise when intellectual property laws are being broken and this may help to increase awareness of any counterfeit products that may be being sold.

Managing supply chain

You should use business information agencies and Companies House (or its equivalent in other countries) to check your suppliers, manufacturers, subcontractors, distributors are legitimate and of good standing.

Make sure that you only buy genuine materials and goods and keep records of your purchases.  Advise your suppliers that you only accept genuine materials and goods.

You should use contracts in your supply chain to protect your rights and to control the risk of counterfeiting. It is always important to start thinking, at an early stage, how your rights will be used.  Licensing provisions in agreements should determine the scope of their permitted activities and will allow the owner of the intellectual property rights to control how their rights are used.

Once contracts are signed the work should not stop.  Regularly check compliance.  For example, you can use “mystery shopping” to buy back products that you have sold to distributors and check that the products are priced, packaged and labelled correctly and lawfully.

Ensure that waste products are securely disposed of and destroyed to avoid them being used to develop or sell counterfeit products.

Regularly check well known internet sites, for example auction sites, and report anyone breaking the law on counterfeiting to the owner of the sites.

Packaging and product design

It is important that products and their packaging are designed so that they cannot easily be copied.  This can include complicated labels or parts that are difficult to produce.  This can increase production costs, but this can be balanced with losses that you may suffer from counterfeiting.

Customers are increasingly adept and using packaging and design to identify and authenticate products to ensure that they are buying a genuine article.

Also clear and distinctive packaging with contact information will help police and other enforcement agencies to look out for counterfeiters’ products.  Counterfeiters may seek to cut costs in areas of packaging and labelling – enforcers often look out for poor quality printing and packaging to distinguish between the fake and the genuine.

It sounds obvious, but you should also ensure that the information is free from grammatical and spelling errors – these are common on counterfeit goods!

Educate your customers

Imitation is a form of flattery.  It shows that you have a leading brand.  Customers will want to “buy into” the exclusivity of that brand.

Businesses are, therefore, increasingly educating their customers about the existence and dangers of buying counterfeit products.  You can find ways of reassuring customers that the products that they are purchasing are genuine. Business such as Uggs provide guidance on websites to warn people of the risks and dangers of purchasing counterfeit products and identifying ways in which genuine products can be distinguished from counterfeit products, by reference to the design of the product and packaging.

Notify appropriate authorities of any suspicions

You should get the appropriate authority involved as soon as possible if you suspect counterfeiting.  In the UK, counterfeiting may involve a number of crimes being committed, so there are a number of ways that criminal law may be applied.  The main authorities are the police, trading standards (local government officers) and customs (as appropriate) and/or the United Kingdom Border Agency.

If you would like more information in relation to any of the issues discussed in this article, please contact Tom Torkar, an Associate in the Technology, Media and Communications Team, at tom.torkar@michelmores.com.