Can you claim against Building Control?

Clients often make this enquiry when they are faced with the issue of defective building works on their home and for whatever reason they are not able to sue the builder or recover damages from them. 

There have been many examples of builders being sued for defective building works, but the claim cannot be enforced due to the building company’s financial position, or even worse insolvency. Historical cases illustrate that there are only extremely limited circumstances when it would be possible to bring a claim against a local authority, even when the building inspector has failed to spot defective construction works in carrying out its building control function under the Building Regulations.

As plans are submitted to the Council for Building Regulations approval and the building control officer inspects the works as they proceed, attempts have subsequently been made to claim that the Council was guilty of maladministration and had failed to discharge its statutory duties – which amounted to a breach of Article 8 of the European Convention on Human Rights, being the right to respect for private and family life.

This has always been denied by the Council leading to homeowners seeking permission to apply for a judicial review – which again has failed based on a number of facts;

• There was no remedy in contract or in negligence.
• There was no public law duty. The legislature had decided had made a decision that local authorities should not be obliged to repair privately owned homes.
• If living conditions were intolerable, the local authority would have an obligation to act under its homelessness legislation.
• The Council did not perform their duties over a prolonged period of time with full knowledge that the failure was having serious consequences for the claimants.
• Notwithstanding the difficulties, the family had lived in the home together as a family unit.
• The direct cause of the defects was the builder`s poor workmanship and his supervening inability or unwillingness to honour the Judgment.

The case highlights the need to ensure that when having building works carried out there is a contract in place with the builder which will protect you if faced with defective works.

It is also a reminder of the need to ensure that, so far as possible, the builder is financially stable so that if the works do not go according to plan they can afford to carry out any necessary remedial works, or, worst case scenario, can meet any Judgment which you may obtain against them.

If you need any help or guidance relating to any part of this article you can contact me at ph@rogers-norton.co.uk or on 01603675639.

Nestle didn’t get a break

31st Jul 2018

It’s been widely reported in the media that after a long-running legal battle between global chocolate giants over the shape of KitKat finger wafers, the case has been sent back to the EU’s trademark office after judges dismissed appeals by both companies.

The ruling by the European Court of Justice means the EU Intellectual Property Office (EUIPO) must review a 2012 decision to uphold Swiss-based Nestlé’s (NESN.S) trademark on the shape of the four-finger chocolate-covered wafer biscuit over objections raised by Cadbury-owned Mondelez (MDLZ.O) of the United States.

The court found that Nestle had failed to show that consumers in enough EU countries recognized the shape as distinctive, but also dismissed an appeal by Mondelez against some of the grounds for a lower EU court ruling in 2016 that had found the EUIPO was wrong to reject the U.S. firm’s complaint.

The outcome leaves the possibility that the trademark agency could, whilst respecting the judges’ ruling, take note of other evidence — such as new proof the shape is distinctive to people in more countries — and might preserve protection for KitKat’s shape. The brand name “KitKat” and the embossment on the chocolate bar are not at issue in the case.

Proceedings have been followed closely by trademark lawyers, who see implications for brands operating across the EU single market, where there are varying histories in national markets. This was not the first time that the two companies have clashed in court; in 2010 Nestle successfully blocked Cadbury’s attempt to trademark the shade of purple used for its signature chocolate wrappers.

The case demonstrates just how protective companies are about their intellectual property rights. Even though the two products in question have been sold side by side in Europe since the 1930’s, multinational companies bought out the original producers and marketed them globally, coming into contact with very similar products thus causing the conflict. Nestle has already intimated that this will not be the end of the battle, showing just how important it is to them to protect the shape of the well-known teatime treat.

Our commercial litigation and dispute resolution team have wide ranging experience in dealing with copyright infringement cases and have successfully secured settlements, judgments and injunctions to protect our clients’ business and Intellectual Property Rights.

We have also acted in connection with defamation and malicious falsehood or trade libel issues – again frequently in the context of wider business disputes where one party is said to be undermining the other’s brand, products or services.

Business Rates - Rating your chances?

It is well-known practice amongst property owners to perform rating mitigation exercises to obtain relief from business rates whilst their properties stand empty. There is, of course, nothing wrong with using a loophole in legislation which enables them to avoid the financial burden of paying rates on an empty property which is not generating any income. However, certain purveyors of “schemes” offered to landlords to “assist” them in avoiding rates have exploited the system for less than altruistic purposes, leaving unsuspecting landlords on the receiving end of proceedings brought by local authorities for liability orders for unpaid rates.

Certain classes of non-domestic property that are empty for a continuous period of 3 or 6 months (depending on the type of property) are exempt from rates over that period. Occupation of the property for less than 6 weeks during that time will be ignored, but if the premises are occupied for 6 weeks or more, the rates exemption will end at the beginning of the occupation but then a new exemption period will begin to run afresh once the property is empty again.

It is therefore common practice to lease an otherwise empty property to another party for a period of 6 weeks, during which time the leaseholder becomes liable for the rates. Once the 6 weeks have expired, the tenant then vacates and the property is then returned to the landlord, who then claims a further statutory 3 or 6 month exemption from rates, and the cycle the continues.

This is beneficial not only to landlords but also for tenants looking for short-term storage and companies who trade in performing the operational logistics by moving items between the various properties.

However, numerous landlords have fallen victim to those who try to exploit this system for financial gain. Companies have sprung up offering to provide landlords with short-term tenants to enable them to take advantage of the rates exemption regime, but there have been numerous instances of the “tenants” not occupying the properties sufficiently to fulfil the requirement of “actual occupation”. This has resulted in local authorities across the country taking action to recover rates on the basis that the tenancies were “shams”. These companies have also taken matters a step further, by seeking to gain not only the 3 or 6-month exemption period for the landlord, but also to avoid liability for the 6-week letting periods. To do so they have attempted to rely upon various other classes of exemption, including a discretionary relief for use of premises for charitable purposes and an exemption for use of premises for fish farming. The latter has resulted in “tenants” placing boxes in premises and claiming that they are being used for snail farming (the definition of fish farming includes shellfish, which in turn includes “molluscs”).

There are several cases like this where Magistrates’ Courts have sided with the local authorities, leaving landlords liable to pay non-domestic rates when they had been under the impression that they had been provided with legitimate tenants and that they had therefore successfully avoided liability. We have acted for landlords in cases where they have fallen victim to these scams and have been able to extricate them from such proceedings before reaching court. If you have recently had proceedings brought against you for rates that you do not think you are liable for, or think you may have unwittingly become involved in one of these “scams”, please contact us.

High Court Success for Litigation Team - Think before you Tweet

Our highly recognised Litigation Team has enjoyed more success for clients in the High Court following clients being the subject of defamatory tweets and facebook postings.

Defamatory Comments on Social Media

Social media is a great medium for people and society in general, but it is a uniquely effective breeding ground for potentially libelous statements. Postings are often made with little forethought or planning and in fits of anger and frustration – they can be deleted, but very often not before they have been seen and noted by a multitude of other users.

Countless people have learned to their dismay that the internet allows people to speak their mind far too easily - It is full of interesting places where someone could intentionally or accidentally leave potentially defamatory comments or posts.

Just a few of these locations are:

• letters to the editor of local newspapers
• public comments on media (i.e., newspaper or magazine) web sites
• blogs and comments to blog postings
• social media like Facebook, Linkedin, and Twitter
• chat rooms or list servers.

While some web sites screen posts for inflammatory or illegal content, the screening systems are not geared to examine every post for defamatory content, and so many questionable postings end up online.

People may be of the opinion that any postings they make are simply their opinion, but they will probably be seen by many readers as statements of fact and so believed and passed on to others.

Injunction

Our Litigation Team immediately commenced High Court proceedings seeking an injunction, damages and costs against a former employee of our client who posted highly defamatory remarks that could be seen publically, on both Twitter and Facebook, about our client and one of their employees. The Court accepted that that the words used on the postings were likely to cause a serious financial loss to our client  – the response to the Facebook posts by other users illustrated that statements had been taken at face value.  

The Defendant has been ordered to permanently delete three defamatory tweets and nine defamatory Facebook posts. The Defendant must also refrain from publishing or causing to be published any other online posts of this nature about our client and their employee. Significant damages and costs were also awarded.

If you have been the subject of defamatory on line comments, there is a real need to act quickly – we can offer the support and guidance necessary in these stressful and upsetting circumstances. The Litigation team have the resource and experience required to secure urgent injunctions at short notice.

For those who wish to post something online that can be widely viewed, you need to give it some serious thought first. Once you have clicked “send,” you can’t take it back.

If you need advice or guidance on the matter please contact our litigation team on 01603 666001 or email ph@rogers-norton.co.uk.

Court of Appeal Reviews Beneficiaries’ Rights

Court of Appeal Reviews Beneficiaries’ Rights

 

In the recently well publicised case of Ilott v Mitson,  Mrs Ilott successfully appealed to the Court of Appeal and received £163,000 from her mother’s estate despite not being named as a beneficiary under the Will.  The circumstances of this case are further surprising as Mrs Ilott had been estranged from her mother for the majority of her adult life despite three attempts at reconciliation.

Family Circumstances

Louisa Shailes of our Private Client team explains; “ Mrs Ilott was brought up solely by her mother following the death of her father before her birth.  At 17 Mrs Ilott left home to live with Mr Ilott without her mother’s approval.  She later married and had 5 children with Mr Ilott but her relationship with her mother never improved.  Mrs Ilott lives in a housing association property and her family is supported by various benefits.

Mrs Ilott’s mother passed away leaving a Will, supported by two side letters explaining her reasoning, leaving nothing to her daughter or wider family but leaving her estate valued at £486,000 equally between three charities.

Judgment from Court of Appeal

Peter Hastings of our litigation team comments “The claim was brought by Mrs Ilott under the Inheritance (Provision for Family and Dependents) Act 1975 which allows, amongst other categories, children of the deceased to bring a claim upon the estate for reasonable provision.
It was found that Mrs Ilott should not be penalised for a lack of expectation of receiving anything from her mother’s estate as the charities had no expectation either as the deceased had no previous connection with the charities in her lifetime. It was also found that the estrangement between the parties should not deprive the appellant of an award.

The testamentary wishes of the deceased has been limited by Parliament as they have “entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made”. The court felt that the limitation on the award for an adult child being limited to provision by way of maintenance was enough to balance the testamentary wishes of the deceased with the needs of the appellant.

The appellant’s income, earning capacity and lack of pension contributed to the court’s reasoning that despite Mrs Ilott being an independent adult child she survived on such a basic level of resources that she was awarded £143,000 to purchase her local authority house. She was also given the option to receive a further award of £20,000 from the estate to provide extra income without affecting the benefits she receives”.

Conclusion

Louisa Shailes adds “Despite the somewhat surprising outcome of the case, it is important to remember that the award made was specific on the facts of this case.  It is clear from the judgment that the court considered all factors set out in Section 3 of the Inheritance (Provision for Family and Dependants Act) 1975 in making their award and therefore there is no new law in the case.  It does, however, appear to show that the court will consider family members claims despite testamentary wishes and consider their maintenance needs”.

It is always important to consider any potential claims upon your estate despite the general rule that you can leave your estate as you wish.  If you would like to discuss your Will and any of the above issues with one of our private client team, please contact Louisa Shailes (louisa.shailes@rogers-norton.co.uk) and for advice on seeking to challenge a Will, please contact Peter Hastings (peter.hastings@rogers-norton.co.uk).

Successes for Rogers and Norton Litigation Team

Rogers & Norton's litigation team is delighted to report two recent successes on claims involving HM Revenue and Customs and the Border Agency.

The team, led by Peter Hastings, acted for a company who had been served with an assessment for alleged excise duty for a sum in excess of £200,000. On review, and after a detailed submission on matters of European law and UK law and the Excise Goods (Holding, Movement and Duty Point) Regulations 2010, the assessment was withdrawn, much to the delight of the Firm's client.

The team also acted for an International Company who imported silver granules into the UK which were detained but released after representations made by the team, including the failure of HMRC and the Border Agency to provide sufficient grounds to justify detention.

Peter commented "In both cases, substantial sums were involved and there could have been serious consequences for these businesses if we had not acted quickly and successfully.  Our work in connection with HMRC has expanded considerably and with great success".

The team is currently acting on numerous other cases involving HMRC and the Border Agency including a seizure of gold, advising on misfeasance claims and insolvency related matters. It represents clients locally, throughout the UK and Internationally and also appears in the Tax Tribunal and conducts Judicial Review proceedings in addition to Appeals and Condemnation Proceedings.

For more information please contact:

Peter Hastings
Partner
peter.hastings@rogers-norton.co.uk
01603 675639

Your Terms or Mine ?

Business dealings are rarely documented in a way that lawyers would like. It is also true to say that if commercial people tried to run their business to suit the lawyers, business would grind to a halt.

The Court of Appeal decision in Tech Data and Amphenol is a good illustration of how things can go wrong.

Tech Data were part of the supply chain for Rolls-Royce engines.  

• They sent a parts order to Amphenol. This was expressly subject to Tech Data’s standard terms and conditions, including tight delivery and quality requirements.
• Amphenol wrote back accepting the order but referring to their own standard terms and conditions which limited their liability for any delay and quality problems.
• Amphenol then delivered the parts, which Tech Data accepted.
• Tech Data later complained of serious delay and quality issues.

Whose terms and conditions governed the contract?

The appeal decision was that Amphenol’s purported acceptance of the order, but on different terms, amounted to a counter-offer. This was then impliedly accepted by Tech Data when it took delivery. The contract came into existence at that moment - and on Amphenol’s terms. Tech Data’s claims failed.

This reflects the traditional legal outcome of this toing and froing of small print paperwork - that the contract is governed by the last terms and conditions to be supplied before the contract came into existence. It’s the “last shot” which counts. That outcome can only be displaced where there is cogent evidence that both parties intended to contract on a different basis. There was none in this case.

One practical difficulty is that this grandly titled “battle of the forms” is typically played out between busy purchase and sales department staff who may not appreciate its potential significance.

The message

If it is important that you only enter into contracts on your own terms and conditions (and why bother with them if is not?) then have a system in place which always :-

• ensures that they are duly referred to in any order you or your colleagues place;
• checks the wording of any purported acknowledgment or acceptance of your order.

If this is anything other than a clean acceptance of your order (with no different terms attached or endorsed or referred to) then :-

• make it clear that there can be no deal until they confirm that the order is subject to your terms and conditions;
• and refuse to accept delivery unless that is done;
• or go ahead anyway - but in the knowledge that if things go wrong, you may not enjoy the protection you had carefully drafted into your business paperwork.

If you would like to discuss this article, or any other matter relating to disputed contract issues please contact John Cadywould on 01603 675629, or e-mail jbc@rogers-norton.co.uk.

First Prosecution for Corporate Manslaughter Commences

On the 17^th June 2009 the first prosecution under the Corporate Manslaughter and Corporate Homicide Act 2007 is to be heard in the Stroud Magistrates Court.

The Crown Prosecution Service have brought of Corporate Manslaughter against Gloucestershire based Cotswold Geotechnical Holdings.

The charge follows the death of a Junior Geologist who was killed in September 2008 when the sides of a pit in which he was collecting soil samples collapsed and crushed him.

In November 2008 Rogers & Norton co hosted a seminar on the impact of the Corporate Manslaughter and Corporate Homicide Act 2007. The commencement of this prosecution is an important development from this seminar and as the prosecution progresses the manner in which the Court will deal with the evidential issues under the Act will be analysed. In addition if found guilty the Court’s new powers in sentencing can also be examined.

Under the Act the Court have the power to impose an unlimited fine. The fine in accordance with sentencing guidelines may be between 2.5% and 10% of a company’s gross turnover.

Aside from the financial sanctions the Court will also have the power to force an organisation to publicise its own guilt at its own expense if found guilty.

It is also of interest that apart from the Prosecution under the new Act the company are also being prosecuted for breaches of Section 2.1 of the Health & Safety at Work Act in failing to protect the deceased. Additionally, Company Director, Mr Peter Easton, is being charged personally with the offence of gross negligence manslaughter and further breaches of the Health & Safety at Work Act.

The case will inevitably be transferred to the Crown Court for Trial and it will be important for all businesses and advisors to watch this case develop and to establish how the Court deals with the evidential issues under the new Act and, if found guilty, their sentencing powers.

We will endeavour to provide further information on the case as and when this becomes available.

If you have any questions regarding the Act or this case please feel free to contact either:

Mark Hambling (email: mbh@rogers-norton.co.uk) Tel. 01603 675668

or Phil Kerridge (email: pnk@rogers-norton.co.uk) Tel. 01603 675612