Michelmores has advised the shareholders of Fargo Systems (“Fargo”), a developer of SaaS products to assist with planning and operations in the shipping and road transport sectors, on the private equity investment in Fargo by August Equity (“August”).

This latest transaction follows Michelmores having acted for the management team on the management buyout of Fargo in 2022, a deal which won Small Deal of the Year category at the Insider South West Dealmakers Awards 2023.

Fargo, whose product development is based at the firm’s innovations centre in Exeter, with support and implementation teams based in Ipswich, is the market leader in TMS software for containerised cargo. It has long-standing relationships with several global logistics businesses, and its software is used across 22 countries. Fargo provides mission-critical cloud software that enables logistics customers to plan, execute, and optimise the movement of goods, providing tangible benefits for its customers in terms of automation, cost, and ESG, as well as ensuring compliance with regulations.

August is a mid-market private equity fund that invests in service-orientated companies in high-growth sectors, including healthcare, education, business services and technology. August will provide funding to enable the business to continue to scale internationally and expand its service lines for customers.

August will invest in the continued organic growth of the business, supplemented with targeted M&A into adjacent service lines and geographies. Fargo represents a strong adjacency to previous August investments in mission critical compliance-driven software businesses.

The Michelmores team advising on the deal was led by Partner Francesca Hubbard, alongside Associate Shafi Choudhury, Senior Associate Chris Smedley and Solicitor Dan O’Sullivan, all from the Firm’s Corporate team, with specialist input from Senior Associate Anthony Reeves (Tax), Senior Associate Danielle Collett-Bruce (Banking) and Associate Matthew Warren (Employment).

Francesca comments:

“We are delighted to have supported Fargo Systems through this transaction to a successful finish. This milestone investment for the company will enable the business to continue to scale internationally and expand its service lines for customers – we wish Fargo all the best in their continued growth.”

Steve Collins, Managing Director of Fargo Systems, said:

“We’re grateful to Michelmores for its expert guidance throughout the process and thrilled to have the support of August Equity as we continue our journey of growth and innovation. This investment strengthens our position as a market leader in transport management solutions and opens up exciting expansion opportunities, both internationally and in the services we offer. We are excited about the future for Fargo Systems and our customers.”

Michelmores’ award-winning Corporate team of specialist lawyers advises clients across the UK and beyond on capital markets, mergers and acquisitions, management buyouts, impact investing, energy projects, microfinance initiatives and more. Read more on our website.

As of 1 October 2024, the Employment (Allocation of Tips) Act 2023 is in force, which means employers must ensure that workers receive tips, gratuities and service charges (over which an employer exercises control or significant influence) in full, and those tips must be allocated fairly and transparently. A policy on how tips are dealt with must be in place (and made available to workers), and records of all tips paid and their allocation and distribution between each worker must be maintained (and accessible by workers). This will impact businesses in a number of industries, but particularly those in hospitality.

Employers must have regard to the statutory Code of Practice when dealing with tips. The Code of Practice outlines the scope of the new obligations, as well as the key principles of fairness (suggesting factors for employers to consider when developing their tipping policy and methods of allocation/distribution) and transparency (in terms of workers’ access to the policy and records). It includes a section dedicated to ‘addressing problems’ (which refers to the use of ACAS to help resolve disputes, with ultimate recourse to the Employment Tribunal).

New non-statutory guidance, released at the end of September 2024, supplements the Code of Practice and provides clarity on certain issues, including confirmation that agency workers must be accounted for when considering the distribution of tips, and clarifying that tips cannot be pooled across multiple sites or different branches. It contains template documents (including a tipping policy and tipping record template) to assist employers.

Ultimately, if an employer fails to fairly allocate or pay tips, or does not comply with its obligations regarding a written policy or record keeping, this could result in workers making claims in the Employment Tribunal. It is therefore vital that employers who operate in industries where employees receive qualifying tips comply with the new obligations and put the necessary frameworks and paperwork in place.

Should you need support in ensuring your business is compliant, or if you wish to discuss any of the issues raised in this article, please do not hesitate to contact Robert Forsyth.

The Firm is celebrating its latest Legal 500 results, which include 31 team rankings with ten rankings in Band 1, and eight in Band 2. Nine lawyers received new rankings in the 2025 Guide, bringing the Firm’s total to 44 individuals recognised for their expertise. Four lawyers are ranked in the Hall of Fame, 17 are Leading Partners, 15 are Next Generation Partners and nine are Leading Associates. 23 of the Firm’s 44 ranked lawyers are women.

This year, Michelmores’ Business Group has been newly ranked in two categories. The team have been listed as a Firm to Watch for Venture Capital in London. Venture Capital rankings focus on company-side representation and financing work where a firm is acting for a venture capital investor. A key component of this section is the extent to which a firm is able to advise a start-up throughout its entire lifecycle, from early stage funding and incorporation to exit transactions. The Firm’s new ranking demonstrates its unparalleled support for clients through this life-cycle with its angel investor network, MAINstream, and its early-stage business support programme, MiVentures, as well as experienced advice to scale-up, mature and exit businesses.

Michelmores’ Business Group has also received new rankings in the EU and Competition South West category for the team in Band 2 and for Commercial Partner, Noel Beale, who ranked as a Next Generation Partner. Factors considered in this category include advice on merger control, abuse of dominance, restrictive practices, state aid, cartel investigations and enforcement.

Corporate Partner, Francesca Hubbard, has received an improved ranking as Next Generation Partner for Corporate and Commercial work in Dorset, Devon & Cornwall along with new rankings for Disputes Partner, Sara Chisholm-Batten as a Leading Partner and Senior Associate, Emily Aggett as a Leading Associate for Commercial Litigation (Dorset, Devon & Cornwall).

The Firm’s renowned Banking and Finance team also rose up the table to Band 3 in the South West.

Michelmores Real Estate Group’s Planning & Environment team received improved rankings and recognition in the South West where the team is now ranked in Band 2, and Head of team, Partner, Mark Howard, is recommended as a Leading Partner in the field. This reflects the growth of the team with arrivals in recent years of experienced partners, Helen Hutton in Cheltenham and Fergus Charlton in Bristol.

Our Commercial Property team in Cheltenham led by experienced Transactional Property Partner, Julie Sharpe, was recognised as a Firm to watch and Partner and Head of the Firm’s Construction & Engineering team, Anna Wood, was also newly ranked as a Next Generation Partner for Construction South West.

Michelmores’ exceptionally highly ranked Private Client Group also had its expertise recognised in the Family and Tax, Trusts & Succession teams. Daniel Eames, Head of Family Law has been listed as a Leading Partner and Sarah Green, Partner in the Family Law team, and James Frampton, Partner in the Tax, Trusts & Succession team, have been newly ranked as a Next Generation Partners.

For the full Michelmores results, please visit The Legal 500 website.

The purpose of the Legal 500 UK Solicitors 2025 rankings is to help in-house lawyers and legal teams find the right advisors. These rankings reflect the comprehensive analysis undertaken by The Legal 500’s legal directory research team. Along with robust assessments of law firm submissions, they also conduct interviews with thousands of clients who play a key role in informing the results.

For more information about Michelmores or to get in touch, please visit our website.

Michelmores has advised CJL Rogers Properties Ltd (“CJL”) and Devonfields Ltd (“Devonfields”) on the acquisition of a retail centre in Devon’s new town centre, situated in Cranbrook, near Exeter.

CJL and Devonfields are private property and development companies owning a large portfolio of retail premises spread nationally across shopping centres and high streets, as well as warehouses and industrial locations. Over the years, the company has acquired newly built retail centres in Stockmoor Village, Bridgwater and now in Cranbrook.

The retail centre is situated under a block of residential apartments, in a market square next to a new Morrisons supermarket that is set to open in early 2025. Construction of the units has completed and tenants are now beginning fit-out works of the units.

The shopping district is set to be a vibrant community of retail and food outlets, including a café and charity shop, and a nursery school. The development looks to be a promising new hub not just for the people of Cranbrook, but also for those in the surrounding villages who will be able to shop locally, rather than needing to travel to Ottery St Mary or Exeter.

The Michelmores team advising on the deal was led by Partner Richard Walford, alongside Chartered Legal Executive, Zilah Nelson, both from the Firm’s Transactional Real Estate team.

Richard comments:

“We’re delighted to have advised CJL and Devonfields on this major acquisition, supporting Cranbrook’s growth in the community, and contributing to the development of this town centre.”

Real Estate forms a core part Michelmores’ work. The Firm advises organisations and individuals doing business in the real estate sector, to help them stay at the forefront of progress and innovation. Read more on our website.

Michelmores has advised Vigo Software (Vigo), a privately owned UK business working in the logistics software market for the past 40 years, on its sale to Kerridge Commercial Systems (KCS).

Vigo designs, builds and hosts Transport Management Systems (TMS) and Warehouse Management Systems (WMS) for its customers across the UK and Ireland. Vigo’s solutions help businesses reduce transport costs through efficient loading, plan delivery routes, meet transportation deadlines and enhance customer experience through transparent on time delivery.

With the combined Vigo-KCS solution, customers can expect to see improved stock visibility, capture logistics operational efficiencies and, enhance client service and communication. Vigo also offers real time driver mobile applications with functionality such as route scheduling and electronic proof of delivery. This complements KCS’ growing suite of logistics and field service solutions.

The Michelmores Corporate team advising on the deal was led by Partner Adam Kean and Associate Ben Adams, with specialist tax input from Senior Associate Anthony Reeves in the Firm’s Tax team.

Adam Kean comments:

“It’s been a pleasure working with John and the shareholders of Vigo team throughout this transaction, and we wish Vigo the very best success in the future as they work on the long-term development of the business alongside KCS.”

John Vickers, Managing Director of Vigo, adds:

“I would like to thank the Michelmores team for helping us successfully navigate our sale to KCS. I am delighted to announce that we will be joining forces – our combination represents an opportunity to provide greater value to our customers in terms of accelerating the pace at which we bring innovation and supply chain efficiency enhancing technology to our customers.”

Adam Kean has acted for the shareholders of Vigo Software since its MBO in 2016, supporting its strategic growth trajectory and exit.

Michelmores has a strong Corporate practice in the UK advising clients across a broad range of sectors. For more information, visit our website.

The overriding objective of the new Government’s proposed planning policy reforms (which are currently out for consultation) is the creation of 1.5 million new homes. Evoking Bob Ross’ charmingly idyllic pictures of peace and nostalgia with fluffy clouds and ‘happy little trees’, the Government has dipped its policy brush in the planning palette and come up with new colour blends to find the land on which to build these new homes.

We explain the different land designations and consider whether grey belt may offer new development opportunities on rural land.

Brownfield land

In keeping with existing planning policy, the Government proposes to take ‘a brownfield first’ approach. The existing policy encourages local authorities to help bring forward those brownfield sites that are suitable for development. Proposals for development of brownfield sites that are suitable for homes and other identified and are located within settlements are already given the benefit of substantial positive weight, to which the amendments propose adding that they are to be ‘acceptable in principle’ and may even ‘passported’ to fast-track them through the planning system, making such sites even more attractive.

So how are brownfield sites identified? First, a check should be made of the local authorities’ register of brownfield land. If the land is not on the register, then consider whether it is land which is or was occupied by a permanent structure (so not simply areas of hard standing) and its extent could include part or all of the curtilage (surrounding area) of the developed land. It should be noted though that land used for agriculture or forestry are excluded, as are land used for mineral extraction or landfill, residential gardens, and parks. Also excluded are areas of land where previous structures have naturally blended into the landscape over time, which is a subjective test.

Developments proposed on brownfield land, which is also known as previously-developed land, should be regarded as ‘acceptable in principle’ which is a good starting point for the prospects of a planning application.

Green belt land

The next colour in the planning palette is green.

Green Belt land will retain its high level of protection. Applications for development defined as inappropriate development will have to show ‘very special circumstances’ to secure the grant of planning permission. New buildings typically amount to inappropriate development in the Green Belt, making it one of the hardest protective designations to overcome in the world of planning.

Grey belt land

The final colour is grey.

The proposed change is that some Green Belt might be re-coloured as Grey Belt. Where that is the case then the scope of inappropriate development is to be narrowed so that housing, commercial and other developments in the Green Belt are capable of being regarded as appropriate, meaning applications no longer need to clear the high hurdle of showing ‘very special circumstances’.

The Government does not intend a wholesale removal of the Green Belt restrictions, rather  it makes provision for the identification of Green Belt land capable of being Grey Belt on which development may now ‘be appropriate’..

Grey Belt land will be previously-developed land in the Green Belt that meets the Grey Belt tests.

Grey belt tests

• The first test for Grey Belt is that it is in a sustainable location. For a housing scheme this typically requires proximity to the existing services or to otherwise good transport links. However the NPPF adds much more detail regarding what amounts to sustainable development, encompassing economic, social and environmental considerations.
• Secondly, the transition to Grey Belt land must not fundamentally undermine the ‘function of the Green Belt across the area of the plan as a whole.’ On the assumption that the ‘functions’ of Green Belt are the extent to which the land serves the five Green Belt purposes, then for a site to qualify as Grey Belt the functions to be preserved are:
  • preventing unrestricted urban sprawl;
  • preventing neighbouring towns from merging;
  • safeguarding the countryside from encroachment;
  • preserving the setting and special character of historic towns; and
  • assisting urban regeneration by encouraging the recycling of derelict and other urban land. These are a matter of geography.
• Thirdly, and probably a good starting point, the Grey Belt land must be located in a local authority’s area, which cannot demonstrate a five-year deliverable housing supply. There are other housing supply tests that might be capable of being taken into consideration in the alternative to this, but they are beyond the scope of this note.
• Finally, the proposed development will need to provide the following contributions. If solely housing, then the scheme must provide 50% affordable housing (although there might be the opportunity to make viability arguments to reduce this, but the proposed viability assessment is skewed against the landowner through the proposed imposition of a standardise benchmark land value). The scheme must also provide new or improved publicly accessible green spaces (or at least provide access to offsite green spaces).

In combination these four constraints call to mind a fourth colour: scarlet, as in the elusive scarlet pimpernel. But that does not mean the search will be fruitless. If a previously-developed Green Belt landholding is in an area short on housing delivery, then exploring the land’s potential for a Grey Belt designation may prove profitable.

For rural land owners or developers or promoters with the benefit of options, the assessment of land’s Grey Belt qualities can be applied to both the plan making and decision taking arms of the planning system, with Grey Belt arguments capable of being used by promoters to secure Green Belt allocations and by developers to secure positive decisions in the Green Belt.

The responses to the consultation will shape the proposed Grey Belt provisions, but the concept is likely to survive.

Should you wish to discuss any of the issues raised in this article, please contact Fergus Charlton.

Where do AI innovations stand in the realm of patent law?

The question of whether computer programs can be patented has been a frequent challenge for the Court of Appeal. The Court recently revisited the issue in the context of Emotional Perception’s application to patent trained AI-Neural Networks (ANN) for music recommendations, in the case of, Comptroller – General of Patents, Designs and Trade Marks v Emotional Perception Ai Limited.[1]

The law

Under the Patents Act 1977 s.1(2)[2], ‘a program for a computer … as such’ is excluded from patent protection. In Emotional Perception’s case, the Court of Appeal overturned the decision of High Court and ruled that ANNs are “computer programs” just like any other computer implemented invention meaning that unless they can demonstrate a ‘technical contribution’, ANNs cannot be patented.

Background

Emotional Perception AI Ltd sought a patent for its system using ANNs to recommend music tracks tailored to its listeners’ emotions and mood at the time.

While platforms like, Spotify and Apple Music use AI-powered recommendation systems which personalise music based on pervious listening history, ANNs are able to categorise music into genres, mood, and playlists, creating a new level of depth for the listener.

The Emotional Perception system uses ANNs trained using datasets, to analyse and adjust the output until the desired output is achieved. Once trained, music is then passed through the ANN which generates its suggestions for the listener.

In June 2022 the Hearing Officer, Deputy Director Phil Thorpe for the Comptroller, rejected the application on the basis that the subject matter was excluded from patentability by s1(2). However, in November 2023 Sir Anthony Mann, sitting as a judge of the High Court, allowed the appeal holding that no computer program was involved at all, at least for a hardware implemented artificial neural network, and therefore the exclusion had no application.

The Court of Appeal restored the original decision holding that ANNs are not patentable highlighting that:

“…ANN implemented inventions are in no better and no worse position than other computer implemented inventions”.

The issues which the Court of Appeal considered were as follows:

• What defines a computer program?
• Can ANNs be distinguished from a computer program?
• Can ANNs be seen to make a technical contribution beyond mere functionality?

Lord Justice Birss explained that a computer program is “a machine that processes information” and a computer program is “a set of instructions for a computer to do something”.[3] The Court determined that Emotional Perception AI’s system fitted the former definition, in that ANNs, however they might have been implemented (hardware or software), are a machine for processing information. The judgment emphasised that the system’s development through training the ANNs rather than directly programming them is common among many programs.

The ANN is trained using “weights and biases” which are adjusted accordingly to achieve the desired output. While this training process does not follow the traditional logic of programming (giving a computer explicit step-by-step instructions), it does not change the fact that these weights guide the machine’s behaviour, making them comparable to a computer program.

This training process was seen by the Court as merely a method of creating the program and not a technical contribution itself.  Additionally, recommending a particular file was viewed as “the presentation of information,”[4] which is not patentable on its own. The Court concluded that the unique features of an ANN did not alter the determination that there was no technical effect, focusing instead on the system’s purpose: recommending music tracks.

Comments

The previous High Court ruling broadened the scope for patenting AI systems by determining that the ANN functioned at a level distinct from the software running on the computer. This meant that the computer’s operation was driven by the ANN itself and thus was not covered by the exclusion under section 1(2)(c) of the Patents Act 1977. So important was the High Court decision that the UK Intellectual Property Office (UKIPO) released new guidance ,[5] (now suspended) for examining patent applications relating to artificial intelligence.

So what does the Court of Appeal decision mean for those people operating in the field of AI and ANNs?

First, the decision does not automatically render systems using ANNs unpatentable. Instead, systems using ANNs are evaluated on the same basis as any other computer programs, with the key factor being whether they provide a significant technical contribution.

What lies ahead?  

Emotional Perception AI Ltd has sought leave to appeal to the Supreme Court. As such, the final outcome of this case is yet to be determined.[6]

If leave is granted, will the Supreme Court decide the case any differently?  We do not think so.

The Court of Appeal decision was written to provide clarity around the “computer program” exclusion which is already complicated by the many cases where the “as such” proviso has been applied. The Supreme Court may wish to look at the Court of Appeal’s broad interpretation which treated ANNs as “computer programs” regardless of whether they are implemented in hardware or software. Regardless of this, we believe that the Supreme Court will regard the bigger question as to whether ANNs should fall outside the patentability exclusion as something best left for the legislators.

Thus this leaves the wider question: Is it time to consider a more principle-based regulatory approach that can keep up with the rapid advancement of AI technologies?

Our specialist Intellectual Property team can help you navigate the complexities of regulation alongside the patentability of AI inventions to ensure that your AI innovations are protected effectively.

[1] Comptroller – General of Patents, Designs and Trade Marks v Emotional Perception Ai Limited [2024] EWCA Civ 825.

[2] Patents Act 1977 Pt I s.1(2).

[3] Comptroller – General of Patents, Designs and Trade Marks v Emotional Perception Ai Limited [2024] EWCA Civ 825 [66].

[4] Ibid [75].

[5] Guidelines for examining patent applications relating to artificial intelligence (AI) – GOV.UK (www.gov.uk)

[6] https://www.lexology.com/library/detail.aspx?g=584975cf-f4a2-4da2-a8ee-c2b757a0c03b

Michelmores is pleased to announce that it has advised the UK’s largest independent processing dairy, Freshways, on the acquisition of Totally Welsh Dairy.

Since its beginnings in 1990 as a small wholesaler, Freshways has grown into one of the largest independent and family-run dairy suppliers in the UK. All of the milk Freshways processes comes from cows farmed in the UK.

Totally Welsh Dairy, also established in 1990, has built a strong reputation for providing high-quality milk sourced from local Welsh farmers within a 40-mile radius of their bottling plant. The company’s dedication to sustainability is evident through their use of reusable glass bottles, which are collected, sterilized, and reused, minimizing environmental impact.

This acquisition follows Freshways’ recent purchase of Milk & More from Müller, where Michelmores also provided legal advice. Milk & More, known for its doorstep delivery service, employs 1,100 people and operates 31 sites across the UK. The integration of Milk & More has allowed Freshways to expand its home delivery services and enhance its sustainability efforts by offering customers the choice between refillable glass bottled milk and renewable cartons.

Totally Welsh Dairy recently invested in a new glass bottling line to meet the growing demand for sustainable packaging. This new bottling line will be utilized to serve the doorstep customers supplied by Milk & More, ensuring a seamless transition and continued commitment to sustainability.

The Michelmores team advising on the deal was led by Corporate Partner Alexandra Watson, alongside Head of Tax, Partner Cathy Bryant and Real Estate Senior Associate, Matt Jones with specialist sector support from Adam Corbin, Client Partner for Freshways.

Alexandra comments:

“We are delighted to have worked with Freshways once more, advising them on this strategic transaction and providing them with the support they needed to see it through to a successful completion. Acquiring Totally Welsh Dairy is very much in line with Freshways’ strategic growth plans, and we are pleased that we have seamlessly reached another exciting milestone together.”https://protect-eu.mimecast.com/s/6nQNCx03Im2yzNTvqu2L?domain=michelmores.com/

Michelmores’ consumer and commercial specialists help UK and international brands to break into new markets, connect with customers and close deals. From food and drink to luxury goods, brands with big ambitions and sustainable visions trust our extensive legal expertise.

Last year, it was revealed that both IKEA UK and McDonalds entered into legal agreements with the Equality and Human Rights Commission (EHRC) to improve their policies and practices in relation to sexual harassment to better protect staff. Other household names, including the Confederation of British Industry (CBI), have also faced serious allegations involving sexual harassment of staff at work.

On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) will come into force. The Act will introduce a new positive legal obligation on employers to take reasonable steps to protect sexual harassment of their employees. This shifts the emphasis so that employers take a more proactive approach to identifying and addressing risks of sexual harassment. If an employer breaches the duty, the EHRC will have the power to take enforcement action against the employer. Further, whilst the new duty does not create a standalone claim that employees can bring in employment tribunals, it gives employment tribunals the power to increase compensation for successful sexual harassment claims by up to 25%.

It is not entirely clear what might constitute ‘reasonable steps’, though once the EHRC’s technical guidance on the new preventative duty is updated, this should provide some helpful direction. Nonetheless, employers would be well-advised to consider the following:

• Introduce (or, if one is already in place, update) an effective anti-harassment policy. The EHRC’s current guidance contains helpful detail on what such a policy should cover. It is essential that any policy sets out a clear reporting procedure for any instances of sexual harassment. Policies should be regularly reviewed and updated, and employees should be familiar with the policy (see training, below).
• Run mandatory tailored training sessions so staff are familiar with your anti-harassment policy. Sessions should also explore what amounts to sexual harassment, the behaviour expected in the workplace, and how to make a complaint. Consider running additional training for senior employees who will be in charge of investigating and managing complaints under the policy. Refresher training should be provided.
• Conduct risk assessments to identify risks and introduce preventative measures. Conducting staff surveys and reviewing records of complaints and their progress can help identify risks. On this point, monitoring the progress of sexual harassment complaints helps ensure allegations are properly investigated and dealt with, and that any patterns of behaviour are identified. The types of risks will differ depending on the industry, but, for example, roles which are public-facing or involve lone working could result in increased risk. Once risks have been identified, specific measures should be introduced to mitigate those risks.
• Encourage the reporting of sexual harassment by providing different channels of reporting. Ensure the process is not unnecessarily restrictive (i.e. by requiring specific forms to be completed or deadlines to be adhered to). Ensure that allegations are investigated properly and take action where wrongdoing is identified.

Should you wish to discuss how your organisation can best prepare for the upcoming changes, please do not hesitate to contact Lynsey Blyth.

As we enter September, many aspiring lawyers are starting their training contracts. Many existing trainees will also reach the milestone of qualification. To help those new joiners, we have sat down with a number of soon to be qualified solicitors to hear their insights into the past two years.

Milli Clark is a final seat trainee, qualifying into the Family team in Exeter, having completed seats in the Family, Transactional Real Estate, Commercial & Regulatory Disputes and Corporate teams in the Exeter office.

Dan O’Sullivan is a final seat trainee, qualifying into the Corporate team in Bristol, having completed seats in the Commercial & Regulatory Disputes, Corporate, Employment and Transactional Real Estate teams, across the London and Bristol offices.

Henny Knott is a final seat trainee, qualifying into the Agriculture team in Bristol, having completed seats in the Asset Protection, Agriculture, Contentious Probate and CRD teams, across the Exeter and Bristol offices.

1. What was the highlight of your training contract?

Milli: attending a Financial Dispute Resolution Hearing with Counsel, whilst representing a party to Financial Proceedings on divorce, and negotiating a settlement whilst at Court.

Henny: interacting with clients. I have had plenty of opportunities to attend client meetings, mediations, court hearings and even site visits to our client’s farms during my training contract. Client contact not only allows you to make connections more easily but it can also provide a great sense of motivation for what it is we are striving to achieve as a team for our clients.

Dan: gaining experience in areas of particular interest, such as Corporate and Employment. Undertaking a training contract at Michelmores provides you with the opportunity to experience a wide range of seats within the three core Groups (Business, Real Estate and Private Client).

2. What was the biggest learning point?

Milli: learning to say ‘no’. As a trainee, you want to be helpful and to impress your team. This can make it difficult to say ‘no’. However, if you are asked to help with a task, but you are at full capacity, it is unhelpful to say ‘yes’ to everyone because it is likely you’ll miss one (or more) deadline(s) and/or do a poor job because you are rushing to complete the task. If at full capacity but asked to assist with a task, you should prioritise the most urgent task. If you are not sure which task is more urgent, you should ask the matter lawyers. You should keep everyone that you are working for updated, if for example, you are told that a specific task is urgent and should be prioritised above everything else.

Henny: helping to prepare for a proprietary estoppel case in the High Court during my Agriculture seat. I learnt a great deal about the procedure and formalities of court, from disclosure to witness statements to the intricacies of trial bundles. We had to work efficiently as a team and show perseverance in order to meet deadlines and ensure that everything was covered in the run up to trial.

Dan: adapting to a new seat every six months, particularly when the prior seat was not overly relevant to the next. Each team has a different way of working and so adapting to this quickly is essential. The clients and third parties you deal with also differ from seat to seat, meaning you need to tailor your approach to correspondence and work accordingly.

3. What was the most unexpected thing you encountered?

Dan: representing a ‘celebrity’ client at a mediation.

Milli: I was shocked by the sheer volume of documents that had to be reviewed as part of a disclosure exercise. The job could not be done by humans alone. Instead, we had to use an online platform with integrated AI to streamline the process. I hadn’t anticipated the size of these exercises to be so big.

Henny: I had not appreciated how many opportunities there would be for trainees to take on responsibility for matter related work (while maintaining a great level of supervision) and also for promoting the firm externally. Whether that be by writing articles for the firm’s website or publications, attending recruitment events, or networking with potential referrers and clients for business development purposes.

4. What have you been involved with outside of client matters?

Milli: I have been involved in our Mainstream initiative. Mainstream is a network for business angel investors established by Michelmores in 2019 to help accelerate the growth and diversity of angel investing, particularly in the Southwest. As part of my involvement in the scheme, I was able to watch applicants pitch their business ideas to our network of members. It was interesting to see the range of exiting and innovative business ideas presented. I also sat in on the selection panels, during which investors discussed the applications received and decided which applicants to put forward to pitch. It was very insightful to be a part of these discussions and learn what factors the investors consider when deciding whether to invest in a business. It has also been useful because it has given me an opportunity to start to develop connections with external people.

Henny: I have had the opportunity to attend many different BD events, including a Women in Rural Practice event in Oxfordshire where we learnt about sustainable farming practices and tasted their delicious local produce, and a NatWest Boost event in Exeter where I listened to a fascinating presentation by a successful make up artist and networked with local businesspeople in the southwest. I have also been a part of the Charity Partnership Group during the latter part of my training contract. Being involved in non-matter related work is a great way to increase your profile within the firm and with a wider network of businesses and individuals in your practice area. It can also help to bring a fresh perspective and inspiration to your client work.

Dan: In my Corporate seat I acted as the team’s Knowledge Lawyer which involved delivering monthly presentations on case law updates, legislative changes, and other points of interest. I also delivered a training session to the Agriculture team on corporate structures. This was great for developing a wider knowledge of the sector whilst also being really beneficial for developing presentational skills, communication, confidence, etc.

5. If you had to do it again, what would you do differently?

Milli: In my last seat, I have been travelling to the Bristol office on a regular basis. Prior to this, I had only visited the Bristol office and the London office, once each. Travelling to the Bristol office more regularly has allowed me to meet and develop connections with colleagues in the Bristol office who I might not otherwise have met. I have also experienced what it is like to work in another city. If I had to do the training contract again, I would have taken advantage of a greater number of opportunities to visit the other offices.

Dan: I would seek out even more business development opportunities throughout my training contract. These are great for demonstrating non-fee earning responsibilities, as well as growing both your internal and external network.

Henny: I have learnt a lot from each of my seats and from everyone who I worked with during my training contract. All of the choices and twists of fate have brought me to where I am today. So, I genuinely would not have changed anything about my experience.

Background to the Landscape Recovery Scheme:

The Landscape Recovery Scheme (“LRS”) is one of three Environmental Land Management (“ELM”) schemes implemented pursuant to the Agriculture Act 2020 (the “AA 2020”). Alongside the Sustainable Farming Incentive and Countryside Stewardship, the schemes are a significant landmark in English agricultural policy. Characterized by the principle of ‘public money for public goods’, the schemes replace farming subsidies under the EU’s Common Agricultural Policy (such subsidies being phased out under the AA 2020). While the ELM schemes offer landowners and farmers varying degrees of financial assistance, they are united in seeking to meet the environmental goals set out in section 1 of the AA 2020.

The Landscape Recovery Scheme in focus

The LRS is ambitious with collaboration at landscape scale a key driver.  It will pay for ‘bespoke, longer-term, larger scale projects to enhance the natural environment’. Getting into the details:

• LRS projects must be in England and relate to a ‘broadly connected area of at least 500 hectares’. Both private and public bodies can apply for funding under the LRS;
• The scheme constitutes five phases; Application, Evaluation, Enrolment, Project Development and Project Implementation. The Project Implementation phase is likely to last ‘at least 20 years’;
• Funding for the projects is intended to be a blend of both public and private money.

To date, there have been two rounds of applications for Development phase funding under the LRS, with each round having a slightly different environmental focus. Round 1 focused on (i) the recovery and restoration of England’s threatened native species and (ii) the restoration of England’s streams and rivers. Round 2 focused on net zero, protected sites and wildlife-rich habitats. Defra is currently funding 56 Projects accepted in Rounds 1 and 2.

Defra suggested a third round of funding would open in 2024, however there have been no further announcements[1] to date.

Further details can be found via Defra’s website: Funding for farmers, growers and land managers – GOV.UK (www.gov.uk)

Michelmores’ role in the LRS:

Michelmores is delighted to see the development of LRS projects gathering pace, having followed the evolution of the LRS since its unveiling.  The Natural Capital team at Michelmores advised at the early test & trial phase, with input provided to projects led by the Foundation for Common Land, North Devon Biosphere Foundation and private landowners.

We are now excited to be working with a number of Round 1 Development phase projects including the North East Cotswold Farmer Cluster and the Upper Axe Landscape Recovery Project.  We are also working closely with a number of other Round 1 and Round 2 projects as they begin to appoint legal advisors to progress the legal and governance aspects of their ambitious schemes.

If you are involved with an LRS project, or considering a Round 3 application, and require legal input, please do get in touch

Contact: Josie Edwards

[1] Landscape Recovery: sharing the successful second round projects – Farming (blog.gov.uk)

Whether you are a parent, a person working in education or simply someone familiar with children, it is very likely that you have heard the terms Montessori and the Montessori method.

Maria Montessori was an Italian doctor and educator who developed an educational approach that supports children’s natural interests as opposed to a more traditional teaching method.

The Montessori method has become so popular over the years that it seems to be a Montessori’s version of everything: Montessori-bed, Montessori-toy, Montessori-kitchen set and so on. What is more, in the UK alone there are more than 600 schools that claim to follow the Montessori method with over 15,000 worldwide and countless websites claiming to sell Montessori items.

However, not all that glitters is…Montessori!

Background

In around 1929, Maria Montessori and her son founded The Association Montessori Internationale (also known as AMI), with the aim of overseeing the activities of schools and training of teachers embracing the Montessori method. AMI defines itself as “the recognised authority for those interested in applying the Montessori approach at multiple levels”.

This might leave you to believe that AMI has some sort of control over the use of the term “Montessori”. However, from a quick search on the UKIPO’s trade mark registry, you can see that AMI only has a UK trade mark registration (UK00913130851) for the logo “AMI ASSOCIATION MONTESSORI INTERNATIONALE”, and no trade mark registration for the word “Montessori” alone. In addition, there are more than 60 live UK trade marks containing the word “Montessori”, all registered in the same class (or classes relevant to education) belonging to different owners with no connection back to AMI.

With so many Montessori trade marks does this mean that the term should now be regarded as a generic term (i.e. free to be used by anyone)?

No. As we learned from the Swiss Chocolate case[1], terms which are essentially descriptive can still be protected provided they have a reputation attached to them which the public understands to mean something.

Trade Mark considerations

The primary purpose of a trade mark is to designate and identify the origin of a good or service so as to distinguish the goods or services offered under the mark by its owner from those offered by a competitor. Once registered, a trade mark gives defined rights over the use of the registered word or logo for the class (or classes) of goods and/or services for which the word or logo is registered.

However, the UK Trade Marks Act 1994 states that trade marks which are devoid of distinctive character shall not be registered. Further, applications to register signs which are identical or similar to earlier trade marks for the goods or services which are identical or similar with the goods or services for which the earlier trade mark is protected shall not be registered if they cause confusion and/or take unfair advantage of or are detrimental to the earlier mark’s reputation.

Given the statutory protections that prevent the same or confusingly similar signs being registered, the large number of trade marks which include the word “Montessori” is perplexing.

These marks are not owned by AMI and with so many registrations in the hands of so many different legal entities, surely this can only dilute the power of the mark to designate origin and weaken the value of the Montessori name.

Does this mean the Montessori is generic? Does this mean that any further registration of marks including the Montessori name is pointless?

As any mark’s distinctiveness diminishes, so too does its ability to designate the origin of the goods and services.

However, just because a lot of people are using a trade mark does not necessarily mean that it has become generic so as to lose all meaning and/or be incapable of acting as a trade mark. Provided the public has an understanding of what “Montessori” means and the principles it stands for then it is still capable of functioning as a trade mark. Further, a business is allowed to use a trade mark owned by someone else to describe its goods and services provided it does so in accordance with honest practices.

Even if trade mark protection had not been obtained, there are legal safeguards and protections that can be used to protect terms such as “Montessori”.

Extended Passing off

Where “collective goodwill” attaches to a brand name for a service or type of product then protection can be achieved via the common law tort of “extended” passing off.

If a term is used in relation to a reasonably identifiable group of products or services which have perceived distinctive qualities (albeit not necessarily superior) then that term should be protected[2]. Therefore, even if it is argued that the term “Montessori” should not be protected as a trade mark as long as the product or service offered under that name aligns with the Montessori criteria; has recognisable and distinctive qualities; and is perceived by the public as having those specific criteria then passing off can be used to stop others using the term to describe things as “Montessori” that do not meet those criteria. The fact that the public may have no clear idea of what makes a product a Montessori product is irrelevant.[3]

Unfair commercial practices

Trade mark law and passing off are essentially consumer protection measures.

The consumer is also protected by specific consumer protection legislation[4] that make it illegal to deceive customers by suggesting that a product adheres to certain criteria when, in reality, it does not or does so only partially. For example, labelling a toy as Montessori solely because it is made of wood, while ignoring that it is also brightly coloured and battery-operated, would be misleading, no matter the actual knowledge of the members of the public of the Montessori criteria such that the seller could be prosecuted by Trading Standards.

However, it is not always easy for the authorities, to identify the unfair commercial practice and enforce the law, and each case needs to be pursued on its merits and in the context of other competing priorities.

An alternative scenario? Certification marks

This all begs the question who should police the use of the Montessori name and what steps should be taken to protect consumers.

In this specific case, an obvious answer suggests that consumer protection would be enhanced if AMI successfully applied, and secured, a certification mark for the word “Montessori”.

A certification mark is a specific type of trade mark, which provides the public with a guarantee that the goods or services bearing the mark meet certain standards or possess specific characteristics defined by the owner of the mark. In this way the consumer will have the guarantee that that product or service satisfies specific criteria of quality and safety and their decision to buy (or not buy) a product or use (or not use) a service will be informed, quick and straightforward.

A certification mark for “Montessori” would define the standards and characteristics which make a good or a service a “Montessori” good or service. All the individuals, organisations, retailers and institutions that wanted to use the word Montessori and wanted to claim to follow the Montessori method, would need to adhere strictly to those standards and characteristics, giving individuals (parents in particular…) peace of mind.

Conclusions

We do not know why there is not greater control over the use of the term Montessori but believe that parents would be better served if there was.

To all individuals and businesses out there, if you believe that you are entitled to describe your goods or services in particular way because you adhere to certain standards then you should be able to do so lawfully provided you act in accordance with honest practices.

On the flip side, if you own a trade mark, you should look to control who is using it and how are they using it to ensure that you retain control over your brand.

Please contact Michelmores to find out what is the best way to protect your brand and maximise its potential.

[1] Swiss chocolate case [1998] RPC 117 at 129

[2] Diageo v Intercontinental Brands [2010] EWHC 17

[3] Swiss chocolate case

[4] Consumer Protection from Unfair Trading Regulations 2008 (implementing the Unfair Commercial Practices Directive)