| Quick Links | Kent SolicitorsLatest legal news from Kent Solicitors, Kaslers Solicitors LLP.Thursday, 31 January 2008Copyright: freelancers
Many companies do not protect their intellectual property when dealing with freelancers who do work for them. With copyright, the starting point is that if an employee does work for the company then the company will be the owner of the work product. But, if the work is done by someone who is not an employee (eg a freelancer) then the law will assume that the freelancer is the owner (the fact that the work was produced for the company who commissioned it does not of itself alter that starting point)
Labels: Copyright Freelancers Wednesday, 30 January 2008Contact list: ownership
Email address lists which form part of the employers IT system will always belong to the employer (even if the list is not confidential). This was confirmed in a recent case, where an employee copied his Outlook contacts before setting up a competing business. Although the judge ruled that he could remove personal contacts, it was held that all the other contacts remained the property of the employer
Labels: Contact list ownership Tuesday, 29 January 2008Directors: insolvency
If a company is faced with potential insolvency, then there is an overriding requirement for directors to consider or act in the interests of creditors of the company. In other words, there will be an overriding duty to creditors (and not to the company). In practice, the difficulty is recognizing when the duty switches from being owed to the company to being owed to the creditors
Labels: Directors insolvency Monday, 28 January 2008Directors loss of office
A company may not make a payment for loss of office to a director unless an ordinary resolution by the members has approved that payment. The definition of what amounts to a payment has recently been tightened up
Labels: Directors loss office Friday, 25 January 2008Directors duty of good faith
There is a new requirement for directors to act in a way which they consider in good faith would be most likely to promote the success of the company for the benefit of its members as a whole. In fulfilling this duty, directors must have regard for the likely long term consequences of any decision, the interests of the employees, the need to foster the companys relationships with suppliers customers and others, impact of the companys operations on the community and environment, the desirability of maintaining a reputation for high standards of business conduct and the need to act fairly as between members and the company
Labels: Director Duty Good Faith Thursday, 24 January 2008Directors duties
The new law on directors duties came into force on 1 October 2007. There are five core duties: duty to exercise independent judgment, to exercise reasonable care skill and diligence, to avoid conflicts of interest, not to accept benefits from third parties and to declare an interest in any proposed transaction or arrangement
Labels: Directors duties Wednesday, 23 January 2008Leasehold Enfranchisement
Many of the old rules surrounding leasehold enfranchisement have changed in recent years. For example you no longer need to pass a Residency Test as you do not have to live or even intend to live at the property, nor do you have to own for a set amount of time. This has resulted in leasehold enfranchisement becoming much more common than it used to be, and has resulted in a serious dent in the potential of the Commonhold system, which some 5 years after its introduction is still struggling to get out of the starting blocks.
Labels: Leasehold Enfranchisement Commonhold Tuesday, 22 January 2008Stay of execution pending appeal
Often, any losing party wishes to appeal the outcome of the case and naturally, does not wish to have to pay over money while that appeal is pending. He would apply for a stay of execution pending the appeal
In these circumstances, the test used either court was to consider whether the money paid over would or could be repaid, if the appeal proved successful Nowadays, the court says it will simply look at all the circumstances and consider the balance of convenience Labels: Stay execution appeal Monday, 21 January 2008Inheritance Tax Nil Rate Band Increase
In October 2007 the Chancellor announced changes to the level of the Inheritance Tax (IHT) Nil Rate Band (NRB) available to a surviving spouse or civil partner. For individuals this remains at #300,000. However, for married couples and civil partners, it will rise to #600,000 immediately and to #700,000 by 2010. This is because couples will now be able to transfer the proportion of the unused IHT NRB, on their death, to the estate of their surviving spouse or civil partner.
Labels: Increase Inheritance Tax Nil Rate Band Budget Friday, 18 January 2008Tax payments by credit card
Draft legislation regarding Her Majestys Revenue and Customs (HMRC), among other things, are proposing to allow people for the first time to pay their tax bills by credit card. However, a merchants surcharge will be levied for the pleasure. Concerns have been raised that this will further deepen tax bill payers debt burden and those already struggling with debt. Other proposals under review include plans to access money in bank accounts if a person has failed to pay his/her tax bills.
Labels: Credit Cards Tax Tax Payment HMRC Revenue and Customs Bank Accounts Thursday, 17 January 2008Developments on flood Plains
About 10% of existing homes are in areas of substantial flood risk, but with the targets for new homes set by the government this proportion is likely to increase. The only alternative to this is to make substantial changes to the Greenbelt planning policies. The government has produced guidance for local authorities and developers, called PPS25, which is a sequential test for assessment of planning permission for flood risk areas. Basically to develop in a flood risk area requires proof there are no alternatives in the area and there is compulsory consultation with the Environment Agency.
Labels: Development Planning Flooding Risk Wednesday, 16 January 2008Football and copyright in drawing
Do you remember "WORLD CUP WILLIE" from the 1966 World Cup hosted by the Football Association Ltd? The Courts do and they think that after 40 years there was still sufficient residual goodwill in the drawing of the cartoon lion mascot to prevent anyone else re-using it today in connection with a major football event
The ownership of copyright in that drawing was sufficient to prevent Jules Rimet Cup Limited from registering ownership of rights in the trade mark "WORLD CUP WILLIE" and a device consisting of a cartoon type lion dressed in the England football strip. Labels: Football copyright trade mark Tuesday, 15 January 2008Employment trust and confidence
An employers insistence upon full compliance with its grievance procedure can amount to a breach of the implied term of trust and confidence e.g. where there have been hearings already and the Employee is being made ill through the stress of prospective further hearings
Labels: Employment trust confidence grievance procedure Monday, 14 January 2008Where is my home?
With over a third of a million second homes in the UK, the principal private residence (PPR) election for CGT purposes is more important than ever. This is something the homeowner must consider and make sure they understand the rules. When does the second home qualify as a main home for the purposes of CGT, when you notify HMRC. You only have two years from purchase to do this, otherwise HMRC will decide which is your main home on the facts, otherwise it is up to you to act and effectively choose, legitimately, not to pay the CGT.
Labels: Property Conveyancing Capital Gains Tax Second Home Friday, 11 January 2008Victory for the taxpayer -- possibly only temporarily!
A husband set up a company to provide his consultancy services. He made sure that his wife had 50% of the shares even though she played no part in the running off the company. The companys income was distributed by way of dividend on the shares, rather than salary to the husband
In a bitterly fought battle going all the way to the House of Lords, the taxpayer emerged victorious. This was not a tax evasion scheme or settlement, but was a genuine gift of the shares by the husband No doubt, HM Revenue and Customs will now seek to change the law Labels: Family company dividend tax evasion settlement gift Thursday, 10 January 2008Best endeavours
The courts continue to define what, in various circumstances, is meant by someone agreeing to use their best endeavours to achieve a certain goal. Obviously, it depends upon the circumstances but one of the latest cases involved an obligation by a party to use best endeavours to achieve a particular planning permission. After examining all his efforts, the court declared that he had not really made any substantial attempts and that therefore he failed in his obligation
Labels: Best endeavours Wednesday, 9 January 2008Company winding up petition
You can serve a statutory demand on a company. Here the company must seek an injunction restraining the advertisement of the winding up petition, if it says that there is no liability or it says it can pay. There is no procedure for the company to apply to set aside a statutory demand as there is with a statutory demand served upon an individual
Labels: Company winding up petition statutory demand Tuesday, 8 January 2008Do we need a HIP replacement?
It would appear that practitioners views on the Home Information Packs (HIPs) are still divided. A number of practitioners who helped devise the policy are still to be convinced as to the merits of the HIP. The House of Lords Merits of Statutory Instruments Committee has suggested that the policy remains under review. Remember however, that from the 14 December 2007 all residential properties in England and Wales being marketed require a HIP. A temporary provision (until 1 June 2008) means you can however begin marketing the property so long as you have commissioned the HIP and it will arrive within 28 days.
Labels: Property conveyancing home information pack HIP update requirements HIPS Monday, 7 January 2008Statutory demand
Consider whether the defendant to any money claim by you has any possible defence
If you have any inkling of a defence, then the court will readily set aside your statutory demand and award costs against you Statutory demand defence money claim Labels: Statutory demand defence money claim Sunday, 6 January 2008Commercial lease disrepair and service charge cap
Often leases, commercial ones especially, say that Landlord have a duty to repair structure but only after Tenant has notified L of any disrepair. Sometimes, lease provide that T"s liability service charge is capped for a certain period
In a recent case, L knew roof needed repair and told T when he was going to do work. It was within the period of the cap. Subsequently, L decided to do the work after the end of that period T sued. L said: You did not notify me that premises needed repair. I am doing works outside that period. Your service contributions are not capped Court said: L did not need to be told, he knew and had waived provision for notice. L had delayed works unreasonably. No explanation for delay. We will assume it was simply to get around cap. T wins Labels: Commercial lease disrepair service charge cap Saturday, 5 January 2008Trespass to land and measure of damages
Where a landowner trespasses on neighbouring property to gain access to his development site, damages for trespass are assessed on the basis of the amount that would have been reasonably payable to obtain a temporary licence to access the site
Labels: Trespass land damages Friday, 4 January 2008Funding litigation
Take legal advice before you agree to help out a friend with the costs of his litigation. If he loses, you might find the other side applying to the court for an order that you pay their legal costs because, if it had not been for you, your friend could not have financed his case
Labels: Funding litigation champerty costs Thursday, 3 January 2008Value added tax
When deciding upon the sale price of your goods, consider carefully the VAT position. Ford motor company sold their cars with the first year's insurance included, but did not itemise that element of cost on any invoice. Only afterwards did they appear to realise that one did not charge VAT on insurance premiums and seek to claim back some #10 million VAT. They failed
Labels: Value added tax insurance Wednesday, 2 January 2008Tree preservation
Trees tend to be thirsty and their roots travel far in search of water. They can cause major damage to the foundations of nearby buildings. The courts have to balance the desirability to preserve trees under Tree Preservation Orders against the desire to preserve buildings from damage
A recent case decided that the court should consider all possible means to achieve that balance and not simply knee-jerk into destroying the tree. For examples, the buildings foundations might be reinforced/underpinned Labels: Tree preservation underpinning damage roots Tuesday, 1 January 2008Redevelopment and airspace
This little island is becoming more crowded. We need more living accommodation. Developers are looking to put extra floors on existing buildings -- to build upwards like in Manhattan. We have dealt with several arguments as to whether the attic/airspace in the roof above the top floor flat has been let to the top floor tenant under the terms of his lease or whether it is still available to the landlord for that new penthouse floor
Labels: Redevelopment lease airspace penthouse
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Members: Michael D Breeze LL.B (Hons.) and Simon McCree Scott LL.B (Hons.)
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