Legally speaking...
What's
the difference between "unlawful" and "illegal?" Well,
"unlawful" is against the law but "illegal" is a large
sick bird......
WHAT
CUSTOMERS WANT- can you deliver? New focus on consumer
rights (DTI
Press Notices Page.)
Feature
by Connected : The Data Protection Act
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for Heartlands Business Forum homepage
Shakespeares' Business Bulletin
The bulletin
below comes to you courtesy of Shakespeares Solicitors, who have kindly
agreed to give us regular updates on legal matters that could affect the
Business World. Shakespeares' website can be found at www.shakespeares.co.uk
Features
are supplied separately by various supporting organisations.
disclaimer
Debts, Late Payment
An interest rate of 8% above the Bank of England base rate is fairly impressive. The Late Payment of Commercial Debts (Interest) Act 1998 allows such interest to be claimed from a date 30 days after the date on which the supplier has performed its obligation. Accordingly, it has a contractual entitlement to statutory interest.
Since November 1998, the Act has applied to small businesses (ie. up to 50 employees), claiming against large businesses (ie. over 50 employees), and the public sector. However, since 1 November 2000 the Act has been extended so that small businesses can now claim the statutory interest against other small businesses.
It is worth making the point that the Act only applies to contracts for the supply of goods or services where both sides are acting in the course of a business (ie. it is not for consumer contracts). The likelihood is that the Act will be extended to all businesses whether large or small in 2002.
For further information please contact James Knight of Shakespeares.
Property Law Update
The Lease/Licence distinction
The lease/licence distinction continues to exercise the minds of the Courts. In the case of National Car Parks Limited v Trinity Developments Co. (Banbury) Limited [2000] a document described as a "licence" authorised NCP to manage a shoppers' car park. The owner was paid a percentage of the net profits. The agreement was from year to year until determined by either party on 3 months' notice. The owner served such a notice and NCP claimed to have a lease under Part II of the Landlord & Tenant Act 1954.
The agreement was held to be a licence because NCP did not have exclusive possession of the land. When granting a licence it is imperative that the owner retains a degree of physical control to avoid granting exclusive possession to the occupier.
For further
information please contact Linda Phillips
Proprietory Estoppel
Estoppel arises where someone [A] is encouraged by another [B] to act to A's detriment in circumstances where it would be unconscionable for B to assert his legal rights. To be successful A needs to show that B not only encouraged a particular belief but also a further belief that B would not change his mind.
This doctrine was examined fully by the Court of Appeal in the case of Gillett v Holt [2000]. The case revolved around various remarks made by Mr. Holt over a period of 43 years which encouraged Mr. Gillett to believe that he would take over the running of Mr. Holt's farm and inherit his farming business. The parties fell out and Mr. Gillett was excluded from Mr. Holt's Will. The Court awarded Mr. Gillett the farmhouse together with certain farm land and £100,000 compensation for exclusion from the farming business.
For further information please contact Linda Phillips
Landlord and Tenant Compensation
The Court of Appeal in Sun Life Assurance Plc -v-Thales Tracs Limited recently considered whether a tenant, requesting a new tenancy under Section 26 of the Landlord and Tenant Act 1954, needed to have a genuine intention to take up a new tenancy at the time of making the request, in order to qualify for statutory compensation. The Court decided a genuine intention was not required as Section 26 was a statutory formality - landlords beware!
For further information please contact Lisa Robotham
Break Clauses in Leases
A break clause in a lease, terminating a lease before the contractual expiry date, will usually provide for precise requirements, particularly as to dates, to be contained within the break notice. The law before 1997 was clear, the express requirements of the relevant clause had to be complied with, any errors would invalidate the notice and it was irrelevant that the recipient understood what was intended.
The case of Mannai Investment Co. Ltd -v- Eagle Star Life Assurance Co. Ltd in 1997 represented a turning point when it was held that any immaterial errors that would not have misled a reasonable recipient could be ignored. Later case law established that this approach applied equally to statutory notices and to other contractual notices.
Subsequent case law has somewhat blurred the circumstances when Mannai can be relied upon. The cases of Lemmerbell Ltd -v- Britannia 1998 and Havant International Holdings Ltd -v- Lionsgatge 1999 highlight this point. The Court will not allow evidence to be adduced as to the recipient's actual knowledge that an error is obvious and immaterial to the recipient; the test is objective.
Recent cases have considered the actual service of the notice and the question of the place at which a notice must be served. The case of Claire's Accessories UK Ltd -v- Kensington High Street Associates LLC examined this point. The lease included a landlord only break clause. Although the clause contained no specific requirements for service of the notice, a general provision in the lease stated any notices served had to comply with Section 196 of the Law of Property Act 1925 provided that where the tenant was a company, notices had to be served on it at its registered office. The landlord had served the notice however at the tenants demised premises. Under Section 196 this would have been sufficient service but the Court felt the key question was whether the proviso for service on the tenant at its registered office was mandatory or merely permissive. A permissive construction might be found where the alternative method of service may be no less disadvantageous. Here, there was probably good reason why service at the registered office was required and the Court found the proviso was therefore mandatory.
Although Mannai may assist where there are errors in the notice itself, it is clear that requirements governing the actual service of notices must be strictly complied with.
For further
information please contact Ranjit Bassey
Payment by Cheques
An interesting case (Commercial Union Life Assurance Co. Ltd and Label Ink Ltd) has arisen where the Courts held that rent was "paid" at the point where the tenant put his cheque in the post rather than when it was received, pursuant to the Bills of Exchange Act 1982.
Therefore, although rent was due on 1st January the tenant was not in default for "non-payment" of rent for the purpose of exercising a break clause on 1st January, even though his rent cheque did not arrive until 4th January. This was because he had posted it on 30th December. The invoice in this case had specifically requested the tenant to pay by cheque through the post. Unfortunately for the tenant, he still lost because the Court considered late payment to be a "material breach", the second condition attached to exercising the break clause.
This could however have all sorts of ramifications with possible claims for premature forfeiture or unlawful distress, where the landlord re-enters or sends in certified bailiffs the day after rent falls due, unaware that "the cheque is in the post".
For further information please contact Julie Russell
Business Services Bulletin is produced on a bi-monthly basis to provide you with up to date information on some of the latest changes that may affect your business. Please do not hesitate to contact Shakespeares if you require any further information.
Telephone : 0121 632 4199
Fax : 0121 643 2257
E-Mail : lisa.robotham@shakespeares.co.uk
This
Business Services Bulletin is not intended to be a definitive analysis
of legislative or other changes and professional advice should be taken
before a course of action is pursued.
Internet Legalities - The Data Protection Act
The 1998 Data Protection Act came into force early in 1999 and covers how information about living and identifiable persons is used. It is much broader in scope than the earlier 1984 act, which was limited to information held on computers.
The Data Protection Act, of course, is mandatory. ALL organisations that hold or process personal data MUST comply and to do so they must register their uses of the personal data that they hold.
The Data Protection Act states that any personal information that is held should comply with the following eight principles of good practice.
* fairly and
lawfully processed;*
processed for limited purposes; *
adequate, relevant and not excessive; *
accurate;* not kept
longer than necessary; * processed in accordance with the data subject's
rights; * secure;* not transferred to countries without adequate protection.
Personal data covers both facts and opinion about the individual. It also includes information regarding the intentions of the data controller towards the individual, such as whether the information will be used for marketing purposes.
The types of
information that the data protection act covers include such things as
contact databases, whether you are storing emails received from clients,
personnel files and client files where they contain say, a contact name.
Heartlands Business Forum
extends its thanks to ConnectED for the above article
MINISTER URGES: "KNOW YOUR RIGHTS FOR EXTRA PURSE POWER"
New Consumer Minister Melanie Johnson has today vowed to "kit-out" the
shopping public with a better understanding of their rights.
A newly published survey reveals that many consumers don't know what's
what when they buy something that's not up to scratch.
At the National Trading Standards Conference in Cardiff, Miss Johnson
emphasised that for consumers to get a fair deal they need to be well
informed. She stressed the important role of consumer advice bodies and
the media in strengthening "purse-power".
The Consumer Knowledge Survey published today shows that:
* As many as, 1 in 3 consumers have had to complain about goods and services
in the previous 12 months;
* only 1 in 4 know that retailers do not have the right to repair a faulty
product, before offering a refund;
* only 1 in 5 consumers buying electrical goods check the product seller's
reputation before their purchase but far more (2 in 5) check reputation
before buying a financial product or service; and
* older people, people from lower income groups and ethnic minorities
are less likely to know their consumer rights. Melanie Johnson, said:
"Confident consumers get the best deals. Confident consumers want
choice, quality and decent prices - this in turn drives product and service
innovation so healthy competition needs consumers who are kitted-out with
an understanding of their rights. "We have provided support for making
150 new Consumer Advice Networks, involving Trading Standards, Citizens
Advice Bureaux, Chambers of Commerce, charities and other bodies to improve
the service to over 40 million consumers. "The media do an excellent job
in raising awareness of consumer affairs - press and television coverage
of horror stories and handy tips help convince the public that they have
rights and should use them.Together we can strengthen purse power."
The research carried out by MORI also reveals that:
* 4 out of 5 people knew they could cancel good and services if they have
not been delivered, or work has not been completed by an agreed date.
* the thing most likely to encourage people to buy on-line is if goods
and services are cheaper over the internet.
Key consumer rights which many shoppers didn't know are:
* You can return a faulty item, even it if has been used.
* If an item is faulty, you are entitled to a refund.
* Retailers do not have the right to repair faulty goods before offering
a refund.
* But remember, if goods are not faulty, if you just don't want them any
more, you are not automatically entitled to a refund.
Notes to Editors
1. In her first speech as Minister for Competition, Consumer Affairs and
Markets, Melanie Johnson MP addressed the Trading Standards Institute
annual conference in Cardiff on 19 June. Full copies of the speech are
available from the DTI press office on 0207 215 5961/5964.
2. The Consumer Knowledge Survey is available on line from http://www.dti.gov.uk/cacp/ca/publications/ckssurvey.htm
Non-journalists can obtain copies from the DTI order line on 0870 1502
5000.
3. The DTI publishes a consumer information leaflet "Unsatisfactory goods:
your rights as a consumer", which is available by ringing 0870 1502 5000.
4. The DTI's Consumer Gateway ( http://www.consumer.gov.uk/ ) provides
easy access to a wide range of consumer information and advice available
on the internet, with links to more than 80 sites. The Gateway also helps
users to identify and contact their local advice agencies, such as Trading
Standards or Citizens Advice Bureaux.
5. The DTI launched Consumer Support Networks in October 2000 to promote
better, more joined-up help and advice for consumers, bringing together
existing services which are often fragmented. Membership of the new local
networks extends from Trading Standards and Citizen's Advice Bureaux to
Chambers of Commerce, Age Concern, the police, local solicitors and other
organisations. Hands-on support and development grants are available to
help networks get started. More than 150 networks are already being created
to improve the service provided to over 40 million consumers.
6. More information on consumer support networks, including case studies,
can be found at http://www.csnconnect.org.uk/
7. The DTI led a bid bringing together a range of Government departments
in support of the National Association of Citizens Advice Bureaux (NACAB).
This has secured a #20m grant over three years from the Treasury's Capital
Modernisation Fund. NACAB will use this in England and Wales to develop
a service-wide IT network, supported by trained Citizens Advice Bureaux
workers, to:
* Extend public access to electronically delivered services and information;
and,
* Enable Citizens Advice Bureaux to act as expert intermediaries to
electronic government services for those at risk of exclusion.
This news item is supplied by the
DTI Press Notices Page. For other items please go to http://www.dti.gov.uk
