June Online Service Updates

What’s new in our plethora of law online services? Steve Savory summarises the highlights.

  • The big news this month is the first new edition since 2009 of Brearley & Bloch on employment covenants. Perhaps the most immediately noticeable thing about Employment Covenants and Confidential Information: Law, Practice and Technique, is its size - as the authors mention in the preface, the 1st edition was 300 pages, the 4th edition is more than 1500 pages. However, the new edition of Brearley & Bloch is, as ever, superbly structured so that the material is clear and simple to navigate. For example, the following point is considered in the chapter on Termination of Employment, under the heading When does employment end?:

'The question of the exact date of termination of employment often arises where the employer has dismissed the employee by paying him in lieu of the salary (and sometimes also benefits) he would have received during the contractual notice period. In Berkeley Administration Inc v McClelland [1990] FSR 505, the employer sought in these circumstances to argue that since McClelland had used confidential information (acquired by him in the course of his employment) during the period for which he received a payment in lieu, he had done so during employment. Wright J rejected this contention, on the basis of the evidence it was plain that Berkeley had wished to get rid of McClelland as soon as possible and that a payment was made in lieu of notice. In those circumstances, there was no question of McClelland having misused confidential information while he was still an employee.'

https://www.bloomsburyprofessionalonline.com/view/employment_covenants/b-9781784512385-0016062.xml

A situation which may be familiar to some readers concerns an employee who plans to leave knowingly soliciting business from the existing employer’s customers. After extensive discussion of the case law where more or less explicit overtures are made to customers, the authors go on to consider the following, perhaps more subtle, method of approach:

Difficulties may also arise where the employee, whilst still employed, acts in a manner which may be viewed as designed to solicit away a customer or co-employee but where nothing is said expressly. That issue arose in Ranson v Customer Systems Plc [2012] IRLR 769 (CA). The defendant employee, Mr Ranson, was employed in a senior sales role. Two days before leaving his employment with the claimant, in his own spare time, Mr Ranson took a customer contact out to dinner. One reason for doing so was to pave the way to obtain business from the customer (who already knew that Mr Ranson was leaving the claimant) after the termination of his employment. However, there was no specific discussion of this during the dinner. The Court of Appeal concluded that this did not amount to canvassing since entertaining the customer in Mr Ranson’s own spare time was, adopting the phrase used by Maugham LJ in Wessex Dairies Ltd v Smith [1935] 2 KB 80 (CA):

‘no more than being “as agreeable, attentive and skilful as it is in his power to be to others with the ultimate view of obtaining the benefit of the customers’ friendly feelings when he calls upon them if and when he sets up business for himself.” It was merely paving the way. He did not divert or interfere with any business opportunity then being pursued by CS [the employer].’

https://www.bloomsburyprofessionalonline.com/view/employment_covenants/b-9781784512385-0018663.xml

  • Elsewhere on Bloomsbury Law Online, the new edition of a very popular title, A Practitioner's Guide to the Court of Protection, has been added to the family law service. As with our other Practitioner’s Guide titles, this is a reference work for users active in the area which covers the detail, often in checklist form, of practice and procedure. For example, here is the start of the coverage of the process when a decision to sell property has been taken:

Once it is clear that the property can and should be sold, a deputy or attorney must ensure that he has sufficient authority to sell the property. A standard property and affairs deputyship order of the type described at 6.1066.117 will contain sufficient authority to sell a property. Most Enduring Powers of Attorney (EPAs) or property and financial affairs Lasting Powers of Attorney (LPAs) are unrestricted, allowing the attorney to sell the property. However, if the order or EPA/LPA does not contain such authority, or no deputy has yet been appointed, an application may be made in one of the following ways:

- on a first application, using Forms COP1 and COP1A, completed to show that the property needs to be sold;

- if the first application has not yet been determined and an order for sale becomes necessary, application for an interim order may be made in Form COP9. Depending on the timescale and any delays in the substantive appointment of the deputy, the Court will either ensure that authority is provided within the first order or in an interim order;

- if a deputy has already been appointed but the order does not authorise the sale of a property then a new application must be made in Form COP1. If the sale is non-contentious, the streamlined procedure in Practice Direction 9D (paragraph 4(e)) may be used. Whether or not the streamlined procedure is used, the applicant must still pay an application fee of £400 and provide the Court with sufficient evidence of the need for the sale, the value of the property and how the proceeds of sale will affect the estate.

https://www.bloomsburyprofessionalonline.com/view/practitioner_guide_court_protection/PGCP-0012898.xml

  • Another keenly anticipated title is Football and the Law, which has been added to the Sport Law service. Even for those who find the beautiful game somewhat less than alluring, this is a fascinating title. For example, most of us will be familiar with the concept of “image rights”, yet it may be surprising to discover that the concept has no specific protection under English law. This is taken from the chapter on Image Rights contributed by Paul Fletcher, Tom Grant, Oliver Hunt and Leon Farr.

A player’s ability to prevent the unauthorised use of their image rights and seek compensation from an infringing party, depends heavily upon whether, and to what extent, the law of a country recognises and protects image rights.

In stark contrast to the laws of many overseas jurisdictions, English law does not offer a specific, statute-based law protection in relation to image rights. In France for example, ‘personality rights’ are protected under Article 9 of the French civil code, whereas in the United States (although varying from state to state) the right of publicity underpins the protection which purports to protect against uncompensated commercial exploitation of a player’s image. In English law, instead, there is a reliance on a framework of statutory and common law intellectual property rights to prevent unauthorised exploitation. Players/image rights companies are left to rely upon a mixture of trademark and copyright law and the common law doctrine of passing off.

https://www.bloomsburyprofessionalonline.com/view/football_law/football_law-0015864.xml

  • Also updated this month, and very topical in this post-GDPR era, is Business, the Internet and the Law. Possibly most readers will feel that they have had their fill of data protection guidance in recent weeks, so here are author Susan Singleton’s notes on online competitions:

Many businesses wish to put competitions on their websites. Consumers win prizes and in the hope of doing so go to the site. The law is complex and beyond the scope of this book but the following points should be considered:

1. Is the competition illegal gambling in any of the jurisdictions in which it will be reached? UK and other internet gambling websites have had serious problems with very strict US legislation which prohibits gambling leading in some cases to directors being arrested when they stood down on US soil;

2. Will the competition comply with English law? The Gambling Act 2005 made some changes to English law in this area which appears to be unaffected by the Consumer Protection from Unfair Trading Regulations 2008. Updated guidance on where the boundary lies between lotteries, prize competitions and free draws under the provisions in the Gambling Act 2005 was published on 2 November 2007. If no fee is paid to enter then a competition can pick winners out of a hat or randomly. If there is a fee (and always look carefully at what might be defined as a fee) then there needs to be some skill exercised and winners cannot be random. The key conclusions of the Gambling Commission November 2007 guidance in this area are:

– ‘free web entry’ needs to be available for a sufficient period and to be sufficiently publicised such that potential participants have a genuine opportunity to use it; and

– multiple choice questions used in prize competitions should have sufficient numbers of plausible and relevant alternative answers.

https://www.bloomsburyprofessionalonline.com/view/business_internet_law/section-00000627.xml

Precedent of the month: A nice complement to the guidance on the web competitions is a precedent for web competition T &Cs, taken from another Susan Singleton title, also updated this month: E-Contracts:

https://www.bloomsburyprofessionalonline.com/view/econtracts/chapter-00000037.xml

 

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