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

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

Requirements for Deathbed Gifts

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

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

Background to the Law

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

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

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

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

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

King v Dubrey/King v Chiltern Dog Rescue

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

Tell me a little about your background

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

What got you interested in running?

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

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

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

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

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

What’s your ultimate dream?

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

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

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

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

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

Can you tell us more about this foundation?

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

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

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

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

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

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

Background

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

Facts

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

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

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

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

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

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

Advocate General’s Opinion

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

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

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

Tips for Employers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In 2014, the cheese industry saw a record surge in exports including £77 million of sales to France and £19 million of sales to Italy. This business represented a third of the overall dairy exports of £1.5 billion. With such rising demand, it is important that cheese makers consider obtaining “protected name” status not only to prevent poor imitation, but also to encourage tourism and increase business revenue.

There are estimated to be over 700 distinct varieties of cheese produced in the UK. However, only 16 of these having been awarded protected status. In comparison, Italy and France respectively have 49 and 51 of their cheeses currently protected. Please see the British Cheese Boards website for more background information, including the differing types of protection which are available in this context.

11 of the UK’s 16 protected cheeses are located in the South West and include household names such as: Single Gloucester; Dorset Blue; and Westcountry Farmhouse Cheddar. Despite this, there are many producers both across the South West region and the rest of the country that could capitalise on the advantages of protected food name status.

Such protected status creates an element of exclusivity surrounding produce and could arguably be seen as a contributing factor in the surge of international cheese exports.

The Environment Secretary Elizabeth Truss, recently urged cheese makers to register a protected food name status over their goods commenting that:

“Growing our British cheese industry will help to bring greater investment, jobs and tourism to local communities. And by trademarking our best-loved cheeses we are not only celebrating our rich heritage of cheese making, but also protecting them from pale imitations.”

These are clearly important benefits for businesses to protect their brands and in particular consider whether their products that may be capable of obtaining protected status. A list of the products which have protected status can be found here.

One word of warning. Undoubtedly the application process for the protected status is not for the faint hearted. By way of example, the campaign to protect Melton Mowbray pork pies took 11 years to complete. However, the benefits to be reaped can be considerable, particularly when trading in products with a wider national or international appeal.

For more information, please contact David Thompson, Head of Food and Drink, Michelmores LLP on 01392 687656 or at david.thompson@michelmores.com

Regulatory investigations are an increasingly common part of corporate life, particularly in the financial services sector. In addition to large fines, civil claims may also be launched off the back of public criticism from a regulator in the knowledge that whistle-blowers or sensitive documents from the investigation already exist. Therefore, what is good strategy on the one hand may not be good strategy on the other.

Risk management is made more complex by the fact investigations can emanate from overseas regulators across jurisdictions – particularly the US.  Since 2010, the volume of requests from the US Securities Exchange Commission (SEC) for co-operation from foreign regulators has increased by 59% and the volume of requests received by the Financial Conduct Authority (FCA) from foreign regulators has increased by 36%.

This throws up a number of difficult issues to navigate.  Do you turn yourself in to the regulator and self-report in return for a lower fine and immunity?  The price to pay for public acknowledgment of wrongdoing might be increased levels of civil claims.  If so, do you categorise and volunteer all relevant emails and data, in a timely fashion instead of opting for a ‘document dump’?  Co-operating with the regulator means claimants will more easily be able to find and identify the most sensitive evidence and courts will decide if an attempted selective waiver of legal privilege is effective.

Deutsche Bank is a case in point.  It received a record $2.5bn of fines following an admission of guilt under a deferred prosecution agreement (DPA) with US authorities relating to alleged Libor rigging.  The FCA said that the Bank repeatedly misled it during Libor investigations, took too long to produce relevant documents and was slow to fix inadequate systems and control which contributed to an enhanced fine.  The two joint Chief Executives of the Bank are also to stand down.

This is all grist to the mill for civil claims being played out in the High Court.  Unitech Global is pursuing Deutsche Bank for damages, and resisting enforcement of $150m of loans, relating to the alleged mis-sale of interest rate swaps linked to Libor.  In the wake of regulatory sanction, it was able to successfully amend its claim to allege that the bank impliedly represented that it would not falsely or fraudulently manipulate the benchmark.   The courts have compared the case to a diner sitting down at a restaurant who makes an implied representation that he or she can pay for their meal – a reasonable person in either scenario would not infer or suspect dishonesty.

Similarly, and having been fined £290m by UK and US authorities in relation to Libor fixing, Barclays is defending a £50m damages claim brought by its customer Rhino Enterprises, which claims false Libor submissions undermined various swap arrangements which triggered administration.  It has also alleged the bank engaged in anti-competitive behaviour by colluding with other banks to manipulate Libor.  This is separate to the $2.43bn of fines Barclays received for allegedly rigging Forex and Isdafix benchmarks.

In a further lawsuit brought by Property Alliance Group against RBS relating to swaps for damages of £30m, RBS has been ordered to handover documents setting out its negotiations with the FCA over its £390m fine for Libor manipulation and which are also kept confidential under seal as a condition of its DPA with US regulators.  The papers will be inspected by a Judge before ruling on whether they are admissible.  This case re-affirms the general approach of the English Courts – that confidentiality does not trump a litigant’s obligation of full and frank disclosure or the principle of open justice.

The disclosure of papers handed over in confidence or inadvertent waiver of privilege is problematic where it forms part of negotiations with regulators, duties to statutory auditors must be discharged, conflict of interests arise with directors or senior managers who are implicated and internal audit, risk and compliance functions generate significant levels of detailed analysis and guidance.  Governance protocols and training programmes can help identify those with authority to liaise with counsel and the allocation of tasks during an investigation.

Technology also has to be understood as IT infrastructure and software which underpin data storage and security systems are a target for investigators.  A leading provider of data recovery, forensics and e-disclosure services recently carried out a survey in which 44% of UK respondents had been involved in an internal investigation and 33% in a regulatory investigation during the last 12 months.  Where are your servers or data managers based?  Are they backing-up data in multiple jurisdictions where the rules on confidentiality, privilege and disclosure are different?

“Wire Fraud” is a US federal crime which includes devising a scheme to obtain money on false pretences in communications sent via e-mail servers.  This has been relevant to traders engaged in Forex manipulation who became infamous for the use of online chat-rooms to exchange confidential client information.  From a legal point of view, the boundary between a legitimate exchange of publically available information and market manipulation is the element of collusion and dishonesty, which is not always easy to evidence but has been dredged from servers.  Traders facing disciplinary action may look for whistleblowing angles or state that a number of practices, such as “layering” or “front-running”, were commonplace and an accepted part of the culture.

There is no indication of any let-up.  The Governor of the Bank of England Mark Carney has promised a crackdown on rogue traders and declared the “age of irresponsibility is over“.  The outcome of the Fair and Effective Markets Review published on 10 June 2015 recommends more wide ranging regulation of derivatives and Forex markets and longer jail sentences for financial crime to correct “ethical drift“.  This is on top of tougher regulatory rules already on the way for senior management on boards, operating committees, in-house lawyers and those with “Significant Influence Functions”.  The Senior Managers Regime (SMR) will enable regulators to fine individuals and ban them from working in the industry.

These are very complex inter-related issues to grapple with.  In terms of setting priorities, managing cross-border privilege whilst undertaking an internal investigation, possibly as a pre-cursor to self-reporting, is high up the list.  In particular, because US regulators still hold a certain fear factor where co-operation is advisable if non-criminal outcomes are to be negotiated.  Legal counsel can also be used to devise pre-emptive risk management strategies or when necessary, to avoid misunderstandings about the basis on which employees or ex-employees co-operate with an internal investigation or a regulatory fact-find.

In relation to civil actions, regulators have paved the road and litigants pursuing Libor related misrepresentation claims in the High Court have sign-posted the way for others to follow (even if they never get to trial).  Libor, Forex and Isdafix manipulation all have the potential to cast a very long shadow by virtue of the fact claims based on fraud will not be time barred, settlements based on fraud can be revisited and documentation from regulatory fact finds or negotiations is available to call upon.  For example, it is now known that the former Chief Operating Officer of Barclays Capital once described the Libor curve as being based on “fantasy rates”.  It remains to be seen whether the current litigation climate is the beginning of the end or the end of the beginning.  In the meantime, the line between regulatory investigations and civil claims has never been more blurred.

In our increasingly digital age, where a rapidly growing number of people in the UK are purchasing smartphones, laptops and other mobile devices, the average person now owns more and more digital assets.

A digital asset is any digitally stored content which is owned by an individual, including images, music and online accounts such as social networking profiles.

This increase in digital assets is creating complications when the owner dies, leaving their Personal Representatives (PRs) to deal with these assets.  Often, PRs will not have regard to digital assets at all, let alone give proper consideration as to how they should be distributed.

The Current Legal Standpoint

Pursuant to the Administration of Estates Act 1925, PRs have a duty to collect and administer the assets of the Deceased’s Estate, this includes digital assets.  Failure to dispose of digital assets correctly could amount to a breach of that duty.  Aside from the legal requirement to administer these assets in the proper fashion, PRs will want to protect the Deceased’s information which could otherwise be easily deleted or lost.  Understanding the importance of distributing these assets in the correct way is key.

The issue of digital assets is made even more complicated by the fact that there is currently no legal protocol in place to assist PRs with the correct way to examine and distribute these assets.

The Society of Trust and Estate Practitioners (STEP) are currently drafting a protocol.  STEP intend to create a best practice policy for online providers to adopt.  In the meantime, PRs often turn to their solicitors for advice on how to administer these assets.  Below is a checklist which will assist in explaining how to deal with different types of digital asset.

Checklist for administering Digital Assets

Whereas computer usage and internet access used to be largely confined to desktop computers, increasing numbers of other devices are now being used in the average UK household to access and store digital assets.  According to OfCom, in 2014, 61% of adults in the UK were using smartphones and over four in 10 households owned a tablet. These figures have risen 10% and 20% respectively since 2013, showing a steady increase in the ownership of devices capable of storing such assets.

PCs, Laptops, Mobile Phones and other devices

• Firstly, check the ownership of the device itself.  If it was supplied to the Deceased by his employer, you will need to contact the employer to find out how to return the device as it may contain confidential information.  This is of vital importance as a PR may infringe the employers’ rights if he disposes of a device which contains confidential information.
• If the Deceased owned the device, check what digital assets are stored on it.  For example, music downloaded from the iTunes Store or digital images downloaded from a website.  Although the Deceased owned the device, this does not necessarily mean he owned the rights attached to the information stored on it.
• Determine whether the Intellectual Property (IP) rights associated with the digital asset are owned by the Deceased.  It is useful to check the terms and conditions of the digital assets to determine the protocol following death of the account holder.  For example, if the digital asset is music downloaded from iTunes, Apple restricts the use of the content solely to Apple devices used by the account holder (the Deceased).  The right to use the content is lost upon death.
• Take any appropriate action before distributing the device, which will usually include copying the information stored on the device before wiping the hard drive.  For mobile phones, PRs should download any information, such as images and remove the SIM card.  It is also important to check with any relevant mobile phone contract provider to see whether the contract terminates on death or any outstanding payments need to be paid.

Intellectual Property created by the Deceased

• Check whether the Deceased personally owned the rights associated with the digital assets on his device.  This may be because the Deceased created the work and it was protected with IP rights.  For example, the Deceased may have created literary or artistic work that he then copyrighted.
• Ascertain whether the Deceased created the work in the course of his employment.  If so, the PR will need to check whether the employer owns the IP rights, pursuant to the Designs and Patents Act 1988.
• If the Deceased owned the rights, the PR will need to create a secure backup copy of the work before deleting it from the device which is to be distributed or sold.  The PR should always check the terms of the Will as the Deceased may have explicitly provided for a gift of the digital asset to a beneficiary, separate from the device itself.
• In the absence of an express reference in the Will, digital assets with little or no IP value are likely to form part of the residual Estate.  It is important to note that where the Deceased died intestate, digital assets will not fall within the statutory definition of ‘personal chattels’. Therefore, digital assets will not automatically pass to the surviving spouse under the intestacy rules.

Online Accounts

Digital assets are often accessed through the online accounts set up by the Deceased, such as email and social networking accounts.

• Check what online accounts the Deceased held.
• If the PR does not have the login details to the accounts, the relevant Internet Service Provider (ISP) such as Google, Apple or Twitter may be able to assist in allowing the PR to gain access to the accounts and download any information needed to administer the Estate.
• The ISP will also be able to provide information on what happens to the digital assets stored on an account after the death of the account holder.  Often, the account will be terminated and permission granted to the authorised PR to access the content.
• Another option which is often used for social networking profiles is “memorialisation”, whereby the ISP preserves the online content created by the account holder to honour the memory of the holder following their death.  Facebook profiles are often memorialised to allow friends and family to post comments on the Deceased’s profile before it is permanently removed.

Conclusion

When a PR is faced with distributing or selling a Deceased’s personal belongings, it is likely this will include digital devices.  Clearly a brief inspection of the devices’ contents before simply disposing of it will not suffice.  Rather, it is essential that a full and proper inspection of the digital assets is carried out and any appropriate action taken depending on the individual IP rights associated with the assets.

PRs have an overriding duty to exercise “reasonable care and skill” when carrying out the administration of the Deceased’s Estate (Trustee Act 2000).  Seeking guidance on the correct actions to take when faced with the Deceased’s digital assets is undoubtedly a reasonable step that all PRs should take.

For more information, please contact Tony Cockayne, Partner and Head of the Disputed Wills and Trusts team at Michelmores LLP.

An appeal brought by the Hong Kong based PCCW Group against Sky for passing off was dismissed by the Supreme Court (“the Court”) on 13 May 2015.

Interestingly, this is the first ‘passing off’ case heard by the highest court of England since the iconic Jif Lemon case in 1990.

The PCCW Group (referred to in the judgment as “PCCM”) has operated the internet television service known as “NOW TV” in Hong Kong since March 2006.  The service is not available in the UK but a number of Chinese speaking residents (both permanent and temporary) were aware of the NOW TV service and the Court considered it was possible for UK residents to be aware of it via You Tube or PCCM’s  own websites.

In March 2012 British Sky Broadcasting Group (“Sky'”) announced its intention to launch a new internet based television service ‘NOW TV’. Shortly after this announcement PCCM issued proceedings against Sky on the basis that its use of “NOW TV” amounted to passing off.

The Court affirmed the earlier decisions at first instance and the Court of Appeal. The Court considered that PCCM did not have actual goodwill in the jurisdiction. The existence of such goodwill is a key ingredient in the context of a passing off action. Mere ‘reputation’ was held to be insufficient.

The Court considered both the importance of protection from unfair competition and the public interest in free competition in making its decision. Lord Neuberger commented:

“In my view, a claimant who has simply obtained a reputation for its mark in this jurisdiction in respect of his products or services outside this jurisdiction has not done enough to justify granting him an effective monopoly in respect of that mark within the jurisdiction.”

The Court held that PCCM could not make out a case of passing off in this instance as PCCM’s business was based in Hong Kong and the availability of NOW TV service via websites in the UK was intended to promote the business in Hong Kong only. Whilst PCCM had developed a small reputation in the UK, no goodwill had attached to PCCM’s NOW TV service in the UK as there were no UK customers.

For traders, the message from the Court is that the traditional approach continues to apply. The English Courts will not protect traders who do not enjoy custom in the jurisdiction who are seeking to restrain their competitors by reference to passing off. Given the reach now afforded through the internet, the Court’s view is that ‘reputation’ can easily be acquired and to allow this to form the basis of a passing off claim would tip the balance in favour of unfair competition. Traders therefore still need to demonstrate sufficient goodwill to acquire this form of protection and this should be carefully considered when bringing or defending passing off claims.

Read the case in full

The winners of the 2015 Michelmores Property Awards have been announced, celebrating ten outstanding property and construction projects across the region.

Torquay-based architects Kay Elliott were the big winners of the night, taking home the prize for ‘Building of the Year’ for its work on the town’s iconic Abbey Sands building – on the site of the former Palm Court Hotel which was destroyed by a fire in 2010. The firm also won the coveted ‘John Laurence Award for Professional Firm of the Year’, recognising its strong performance in the South West and beyond.

The Dawlish Emergency Project, to re-establish the railway line and sea wall destroyed after severe storms in February 2014, was awarded a ‘Special Infrastructure Prize’. The project team, comprising Network Rail, engineering and development consultancy Mott MacDonald and other contractors, successfully restored the railway line back to use in just eight weeks.

Holland Park, by Exeter-based Heritage Developments, was named ‘Residential Development of the Year 40 Units and Under’, for its collection of stylish, Zero Carbon homes. Meanwhile, Linden Homes’ Home @ Heartlands development near Pool, won ‘Residential Development Project of the Year 41 Units and Over’.

Two Plymouth-based projects were also recognised – including Help for Heroes Personnel Recovery Centre, Plymouth, submitted by Interserve Construction and Plymouth University’s Marine Station, submitted by Balfour Beatty.

Other winning projects include joint winners for ‘Heritage Project of the Year’ – Exeter Mathematics School, and Samuel Jones Smoke & Ale House. Whalesborough Farm, near Bude, Cornwall was awarded ‘Eco Project of the Year’.

Emma Honey, Head of Real Estate at Michelmores, said:

“This year we received the highest number of entries in the last five years of the competition − signaling a strengthening property and construction sector in the South West. The quality of the entries has been very impressive with tough competition in each category, so many congratulations to all the winners on their fantastic achievements.”

The Michelmores Property Awards − now in its 13th year, celebrates excellence in the property and construction industry, across the commercial and residential sectors in Devon, Cornwall, Somerset and Dorset. The Awards Dinner was hosted by comedian and writer Rory McGrath at Exeter’s Sandy Park Conference Centre, on 19 May.

The 2015 Michelmores Property Awards winners in full:

Commercial Project of the Year with a Value Over £5million

• Help for Heroes Personnel Recovery Centre, Plymouth – submitted by Interserve Construction

Commercial Project of the Year with a Value Under £5million

• Marine Station, Plymouth University – submitted by Balfour Beatty

Building of the Year

• Abbey Sands, Torquay – submitted by Kay Elliott

Heritage Project of the Year

• Exeter Mathematics School – submitted by Kier Construction
• Samuel Jones Smoke & Ale House, Exeter – submitted by St Austell Brewery

Eco Project of the Year

• Whalesborough Farm, Bude, Cornwall – submitted by Trewin Design Architects

The John Laurence Award for Professional Firm of the Year

• Kay Elliott, Torquay

Residential Project of the Year 41 Units and Over 

• Home @ Heartlands, Pool, Cornwall – submitted by Linden Homes

Residential Project of the Year 40 Units and Under (but more than 6)

• Holland Park, Exeter – submitted by Heritage Developments

The Special Infrastructure Award

• The Dawlish Railway Project – submitted by Network Rail and Mott MacDonald

The latest figures from DECC for the deployment of ‘standalone’ solar PV systems in the UK are almost certain to lead to a reduction in the level of the feed-in tariffs (FITs) for such schemes, down to under 4.5 pence per kilowatt hour. This so-called ‘super degression’ – equating to a reduction in support of 28%  – has been triggered as a result of almost 100MW of new, standalone solar schemes coming on stream in the first quarter of the year. The change would come into effect for the second half of 2015. Alongside the early curtailment of support for ‘big solar’ via the Renewables Obligation (i.e. ROCs rather than FITs) from March 2015 and the shaky start for solar under the new, Contracts for Difference support mechanism, there are clearly challenges ahead for developers of large, ground-mounted schemes. Taking a step back, though, the industry in the UK has achieved remarkable progress in a relatively short period of time; especially when one considers that the FIT stood at over 30p / kWh for generation by large, standalone solar schemes less than four years ago.

The ability of developers to control their costs and/or work within shrinking margins is finite, however, and the increasing shortage of economically-viable grid connections is pulling in the opposite direction.

Among our developer clients, there is still considerable optimism, although once the current crop of pre-accredited schemes is built out, there does appear to be something of a fallow period looming.  The enthusiasm for smaller (sub-5MW) and/or community schemes with shared connections is not universal and does not appear to us to be likely to result in a sufficient volume of schemes to keep the trend line on an upward trajectory.  But it’s worth keeping in mind that grid parity has already been achieved in several parts of the world – typically and unsurprisingly those with lots of sun, good demand and comparatively high prices for traditional sources of energy. Perhaps the relatively small leap now required for solar PV to reach utility-scale grid parity in the UK is within sight.

For more information please contact Ian Holyoak, Partner and Head of the Energy & Renewables team at ian.holyoak@michelmores.com or 01392 687682.

Michelmores LLP has advised renewable energy company TLS Hydo Power on a £2.5m bond issue − the first for the UK-based energy provider.

TLS Hydro Power is part of the TLS Energy Group that owns and operates several hydropower sites across Scotland and England.  Funds raised from the bond issue will finance new energy schemes, including a 1MW project in the Perth and Kinross district of Scotland.

The bond issue was launched in conjunction with ethical bank Triodos, offering investors 7% interest a year, for five years. The offer has since oversubscribed, closing just three weeks after opening.

Alexandra Watson, Associate, who led the Michelmores team, said:

“It was a real pleasure to advise TLS Hydro Power through its first bond issue, giving investors the opportunity to support the future UK’s renewable energy industry. The bond issue proved very popular with investors and will provide TLS with the capital to finance new renewable schemes.”

For further information please contact Ian Holyoak, Partner and Head of the Renewable Energy team at Michelmores, by telephone on 01392 687682 or by email at ian.holyoak@michelmores.com.

The new Regulations replace the Public Contracts Regulations 2006 (as amended) in their entirety.  The Regulations transpose the Public Sector Reform Directive 2014/24/EU of 26 February 2014. The Government had stated that these would be transposed last autumn, but they were finally transposed with little fanfare on Thursday, 26 February 2015 and, in the main, apply to all procurements started on or after 26 February 2015. The old rules apply to procurements started before that date. The Regulations apply in England, Wales and Northern Ireland.  The Scottish Government has not yet transposed the EU Directive into Scottish Regulations.

A Prior Information Notice (“PIN”) issued on or after 26 February 2015 will fall within scope of the PCR 2015. The new Regulations will not apply to any health services contracts that are within the scope of the NHS (Procurement, Patient Choice and Competition)(No.2) Regulations 2013 (the “NHS Regulations”) until 18 April 2016.

Change to Procedures

You will be aware that there were previously four procurement procedures:

• The Open Procurement Procedure
• The Restricted Procurement Procedure
• The Negotiated Procurement Procedure with and without advertisement
• The Competitive Dialogue Procedure

Changes to the Competitive Dialogue Procedure

There are some subtle changes to some wording. For example, tenders received after close of dialogue may now be “clarified, specified and optimised” rather than “clarified, specified and fine-tuned”. In that context changes must now not be made to the “essential aspects of the tender” rather than the “basic features of the tender” as was previously the case.

The Negotiated Procedure with advertisement has been abolished. There are two new procedures:

• The Competitive Procedure with Negotiation

The CPN is a more heavily regulated procedure than the previous competitive negotiated procedure. It requires contracting authorities to specify award criteria and minimum requirements up-front in the procurement documents. Initial tenders (to be submitted within 30 days) then form the basis for negotiations. The minimum requirements must not be the subject of negotiation and there are controls on the conduct of the negotiations. It is permitted to reduce the number of tenders during the course of negotiations. Importantly, no negotiation is permitted after receipt of final tenders.

• Innovation Partnerships

Innovation partnerships are a new concept in EU procurement law. They are intended to be long term partnerships which allow for both the development and subsequent purchase of new and innovative products, services or works.

The term “partnerships” is not used in a technical sense to mean legal partnerships as defined under UK law. The term is used to indicate the partnering type approach to working together.

The Innovation partnership procedure allows for a single procurement process for: 1) the appointment of one or more innovation partners; 2) parallel innovative development work as well as permitting the number of partners to be reduced; and 3)  an option for the contracting authority to purchase the innovative supply, service or works developed as a result of the Innovation partnership.

The Regulations define “innovation” as “the implementation of new or significantly improved” products, services or processes. The non-exhaustive definition covers:

• production
• building and construction
• a new marketing method
• a new organisational method in business practices
• workplace organisation or external relations

This broad definition will cover a wide range of procurements, from development of a single specialist product to, potentially, major outsourcing arrangements.

The new or significantly improved products, services or processes should be implemented with the purpose of helping to “solve societal challenges” or to support the Europe 2020 strategy. From a practical perspective, contracting authorities will need to have a clear audit trail demonstrating how the proposed arrangements achieve this objective and fall within the definition of “innovation”.

Selection criteria for innovation partnerships are to include capacity in R&D and developing and implementing innovative solutions.  The contracting authority must invite a minimum of 3 economic operators to participate in the innovation partnership procedure, provided that there are 3 suitably qualified economic operators.

Time limits

The minimum timelimit for the PQQ stage for all of the procedures is now to be 30 days from dispatch of the OJEU Contract Notice.

The minimum timelimit for the ITT stage under the Restricted Procurement Procedure is now to be 30 days.

OJEU Contract Award Notices must be dispatched within 30 days of contract award, rather than the current 48 days limit.

New Light Touch Regime

Under the current rules, services are classified as either “Part A” services, which are fully regulated, or “Part B” services, which are only regulated lightly. The new Regulations abolish this concept. All services are subject to full regulation unless they fall within the list of services which are subject to a new “light touch regime”.

The new light touch regime requires contracting authorities to advertise contracts for light regime services, worth €750,000/£625,050 (the equivalent value in £ is fixed until 31 December 2016 and will then be revised along with the other financial thresholds) or more, in the OJEU. The way in which the procurement process is run is not regulated in detail in the new Regulations.  EU Member states are required to implement their own rules on procurement processes for light regime contracts, subject to complying with transparency and equal treatment principles.

Light touch regime services are listed in Schedule 3 of the Regulations. In practice the list of services covered by the “light touch regime” looks very similar indeed to the current list of Part B services (certain health, educational/vocational services and social services)!  There are, however, some services which were Part B services but which are now fully regulated and so you have to check the list very carefully.

Light touch regime contracts at or over the threshold must be advertised in the Official Journal of the European Union (OJEU), using standard form notices. All contracting authorities may use either a Contract Notice to advertise in the OJEU or an enhanced Prior Information Notice, which can be published a year or more in advance and which can cover multiple contracts.

The Light Touch regime will not apply to any health services contracts that are within the scope of the NHS Regulations until 18 April 2016.

Changes to benefit SMEs

Division into Lots: Regulation 46(2), as part of the drive to encourage smaller suppliers, requires a contracting authority deciding not to divide a contract into lots to explain why this decision was taken in the Regulation 84 report (see paragraph 14 for more information on this). In order to encourage contracting authorities to “share out” lots amongst bidders, Regulation 46(4) allows a limit to be set on the number of lots that may be awarded to one particular supplier. However, Regulation 46(5) also requires contracting authorities setting such a maximum to provide details of the objective criteria they intend to use to decide how a lot should be awarded if the winner of that lot has already won the maximum number of lots permitted. This may prove to be difficult to do in practice.

The division into lots could be of particular interest to the construction industry, lots could potentially be used where a contracting authority wants to tender for the entire project under a single contract notice but then breaks that down into separate lots for perhaps site remediation, demolition, construction, or perhaps specialist works packages are required but the contracting authority wants to retain particular control.  Similarly with consultancy contracts, the contracting authority may wish to procure all of its professional team under one contract notice and then split each discipline into lots for the architect, engineer, surveyor, project manager etc.

Maximum of two times turnover: Regulation 58 limits the maximum turnover requirements that contracting authorities may set to a maximum of twice the contract value, unless due to the particular risks a greater turnover requirement is justified.

European Standard Procurement Document (ESPD): Regulation 59 requires contracting authorities to accept the ESPD, which is a standard EU form of self-certification available for use by a supplier, to demonstrate it is not within the exclusion criteria and that it meets financial standing and technical capability criteria. The contracting authority may request supporting documentation or evidence at any stage (Regulation 59(8)); however, if the evidence needed is directly obtainable (e.g. through central databases) then this route must be taken (Regulation 59(5)). In simple terms, it is intended that suppliers are unlikely to be requested to provide financial reports and accounts etc. unless they are appointed as preferred bidder, saving SMEs money and time.

Selection stage

New grounds for mandatory exclusion include those under the Counter Terrorism Act 2008 and the Serious Crime Act 2007. In addition, for example, where a supplier has failed to pay taxes or social security contributions and there has been a binding judgment or decision in the case, that supplier must be excluded.

There are new grounds for discretionary exclusion which contracting authorities will need to address, for example, where the supplier has:

• failed to pay taxes or social security contributions and the contracting authority can demonstrate this by ‘appropriate means’ even in the absence of a formal ruling; or
• performed poorly on previous contracts, resulting in termination or damages or the equivalent; or
• exerted undue influence on procurement decision making process; or
• various other circumstances which would distort competition e.g. conflicts of interest, collusion, prior involvement (where the impact of this is incapable of being neutralised by dissemination of information to other bidders).

Duration of exclusion: Regulation 57(11) states that for a mandatory exclusion offence a bidder shall be excluded for a period of five years, and for a discretionary exclusion, a period of three years. In addition, Regulation 57(13) sets out a “self-cleaning” mechanism where a supplier may provide evidence that, despite the existence of mandatory or discretionary grounds, it can demonstrate its reliability and that it has taken compensatory measures to prevent the issue happening again (see Regulation 57(15)). There is an obligation on the contracting authority to evaluate the evidence in the light of the gravity and circumstances of the misconduct, and to provide reasons to the supplier if it considers the “self-cleaning” to be insufficient and it wishes to proceed to exclude in any event (Regulation 57(17)).

Public Sector Mutuals: Reserved contracts for mutually-owned entities and sheltered workshops

The Regulations contain new opportunities for contracting authorities to further social and community policies by reserving contract opportunities to certain types of supplier.

Regulation 77 allows contracting authorities to reserve contracts for certain health, social and cultural services to employee mutuals without having to subject the contract to the application of the Regulations in full. (Note that health services which fall under the NHS Regulations are not covered by Regulation 77).

An organisation will qualify under regulation 77 if:

• its objective is the pursuit of a public service mission linked to the delivery of those services;
• profits are reinvested and/or are distributed on participatory considerations;
• ownership of the organisation is based on employee ownership/participatory principles or requires the active participation of employees, service users or stakeholders;
• the organisation has not had a contract for the services concerned reserved to it by this contracting authority in the previous three years;
• the contract term is no longer than three years; and
• the call for competition/advertisement makes reference to Article 77 of the Directive (from which the provisions of Regulation 77 are derived).

In addition, Regulation 20 allows contracting authorities to reserve the right to compete in a procurement process to sheltered workshops, provided that the OJEU Contract Notice references Article 20 of the Directive and at least 30% of the employees of the workshop are disabled or disadvantaged.

Under-threshold contracts

Regulations 109 to 112 of the PCR 2015 regulate contracts that fall under the threshold; this is part of the so-called “Lord Young reforms” aimed at encouraging smaller suppliers.

Regulations 110 and 112 require that:

• contracts as low in value as £10,000 (or £25,000 for ‘sub-central’ contracting authority procurements), if advertised at all, must be advertised on the government’s “Contracts Finder” portal; and
• unless one of the exemptions at Regulation 112(2) applies, details about contract award must also be sent to Contracts Finder.

Maintained schools and Academies are exempt from these requirements, as are contracts for health services covered by the NHS Regulations. In addition, Regulation 111 brings in a new ban on use of a selection (PQQ) stage for under threshold contracts and a statutory obligation to have regard to Cabinet Office guidance around this.

Codification of in-house exemption and material change case-law

Previously European case law (particularly, the Teckal and Hamburg cases) was authority on when an in-house contract or joint co-operation arrangement fell outside the scope of the 2006 Regulations. The new Regulations now sets out these exemptions in statute for the first time.

Previously European case law, especially the Pressetext case, was authority on the extent to which a public contract could be modified without triggering a requirement to run a new procurement process. Regulation 72 now sets that test out in statute for the first time and clarifies it to a certain extent.

Regulation 72(1) states that a modification which is provided for in the original contract in “clear, precise and unequivocal” terms will not trigger a new procurement process.

There is now a formal safe harbour where the change in value is relatively small – the lower of the value of the relevant threshold applying to the procurement or under 10% (services & supplies) or under 15% (works) (Regulation 72(5).

There is also no need for a new procurement where there has been a replacement of the supplier following a corporate restructuring, insolvency or merger, and the new supplier still meets the original selection criteria. This exemption is only available where there is no other substantial modification to the contract (Regulation 72(1)(d)(ii)).

Framework agreements

There is little new law in relation to frameworks, save that Regulation 33(5) confirms what guidance and case law have previously required; i.e. only contracting authorities who are identified as customers in the call for competition are entitled to call off contracts from a framework agreement.

Reports

There is now a need to provide a comprehensive procurement report for each tendering exercise.

Payment of Invoices

Regulation 113 was another late addition to the final version of the PCR 2015 and applies to all public contracts other than those for health services under the NHS Regulations and those awarded by a maintained school or Academy. It puts onto a statutory footing what previously had been the subject of guidance only; an obligation on contracting authorities to pay valid and undisputed invoices within a 30 day period (Regulation 113(2)(a)). There is also a requirement to ensure that invoices are considered and verified in a timely fashion – undue delay will not be a justification for failing to treat an invoice as valid and undisputed (Regulation 113(b)). Finally, there is an obligation on contracting authorities to ensure that suppliers abide by these conditions in relation to their own sub-contractors, such that the 30 day payment term is passed down the supply chain (Regulation 113(2)(c)).

Where a public contract fails to include these provisions, Regulation 113(6) will “deem” them to be included in any event, meaning there is no possibility of opting out of these obligations.

New Directives

There are two more Directives to implement, one on utilities and one on higher value concessions.

A concession contract is a contract under which a contracting authority or a utility outsources works or services to a contractor or provider, who then has the right to commercially exploit those works or services in order to recoup its investment and make a return. The key feature is that the contractor/provider bears the operating risk of the arrangement and so has no guarantee of recouping its investment or operating costs. Common examples of concessions might include: running catering establishments in publicly owned sports and leisure facilities, provision of car parking facilities and services; or the operation of toll roads.

The new concessions regime will mean that all concessions above € 5,186,000 will have to be advertised in the EU’s Official Journal. Purchasers will still be able to determine how their tender procedure runs, subject to certain minimum rules on mandatory/discretionary grounds for bidder exclusion, time limits for expressions of interest and tenders, and award criteria.

The above article contains a summary of complicated areas of law and is not legal advice.