ViHPS LEGAL LIMITED SOLICITORS AUTHORISED AND REGULATED BY THE SOLICITORS REGULATION AUTHORITY FIRM ID:446266 REGISTERED IN ENGLAND AND WALES UNDER COMPANY NUMBER 05928527 VAT 892 3245 10 ©ViHPS Legal Limited Terms and policies.
COMMERCIAL SOLICITORS
®
Welcome to the First Edition of the ViHPS Newsletter! We will be publishing an edition every season to give an overview of the latest legal developments relevant to your business. This edition looks at Regulatory updates, a case study on a high court trial we were instructed on and Top Tips on Reviewing Contracts. Please fill in our questionnaire at the bottom so we can review your feedback for future editions.
Regulatory Update
The Bribery Act 2010
Why do I need to know about this?
- Businesses can be liable if personnel acting on their behalf commit bribery
- Organisations prosecuted can be fined & Directors fined/imprisoned
- Large organisations will implement new governance codes on business partners
What do I need to know about this?
- Offering (directly/through a third party) or accepting bribes are offences
- Businesses have a defence where they have ‘adequate’ anti-
bribery procedures - Offences can be committed even if they occur outside the UK
- The Act came into force on 1st July 2011
- The first prosecution under the Act has now been made against a magistrates court clerk
What do I need to do about it?
- Seek top level management support
- Risk assessments & due diligence checks
- Develop clear & accessible policies (i.e. on conduct/gifts/hospitality)
- Implement internally & with agencies/distributors
- Training & record keeping
- Review agency/distributor contracts (i.e. warranties and indemnities)
How can I find out more about it?
- Official guidance:
http://www.justice.gov.uk/guidance/docs/bribery-
- Guidance for SMEs:
http://www.transparency.org/global_priorities/private_sector/business_principles
Contact ViHPS for help on developing Policies & reviewing agency/distributor agreements
The Agency Workers (Amendment) Regulations 2011 (SI2011/1941) (‘the Regs’)
Why do I need to know about this?
- The Regs will give agency workers the enhanced employment rights and may have an impact on your organisation where it sources workers from an agency
What do I need to know about this?
- The Regs will come into force on 1st October 2011
- After a 12-
week qualifying period an agency worker will be entitled to the same basic - The Regs are before Parliament and amend drafting errors in the 2010 regulations
- The definition of agency worker is now wider so individuals with an employment contract with a temporary work agency or any other contract to perform services are covered
- The ‘reasonable steps’ defence to unequal treatment is only available to temporary worker agencies and not hirers
What do I need to do about it?
- Ensure your HR team is up to speed with the rights of agency workers prior to implementation
- Ensure your contracts with agency worker suppliers comply with the Regs and adequately protect your organisation
How can I find out more about it?
- Official BIS Guidance:
Contact ViHPS for help on reviewing agency supply contracts
The Defamation Bill
Why do I need to know about this?
- The rise of social networking has heightened the risk of defamation for businesses/their staff
- The Bill makes proposals aimed at balancing defamation against free speech
- The consultation gives interested parties a chance to respond to the proposals
What do I need to know about the proposals?
- New ‘substantial harm test’ for Claimants to reduce claims with no connection to the UK
- Single publication rule to prevent repeat claims every time an internet article is accessed
- New public interest defence
What do I need to do about it?
- Interested parties can complete the consultation questionnaire
- Look out for developments post-
10 June 2011
How can I find out more about it?
- The Consultation Draft:
http://www.justice.gov.uk/consultations/docs/draft-
Contact ViHPS for further information Home
The Public Procurement (Miscellaneous Amendments) Regulations 2011 (‘the Regs’)
Why do I need to know about this?
- Following the ECJ Uniplex judgment the cabinet office has amended time limits for public procurement challenges
- These changes may affect companies seeking to challenge authority tender decisions
What do I need to know about the proposals?
- From 1st October 2011 the requirement is now a new general time limit of 30 days running from the date on which the economic operator “first knew or ought to have known” that grounds for starting proceedings had arisen
- The court has a discretion over whether there is good reason to extend the period to a maximum of 3 months from the date of knowledge
- Claim forms need only be issued rather than served within the time limits with service being effected within 7 days of issue
- The automatic suspension of any tendering award now applies from when the contracting authority becomes aware that proceedings have been issued
What do I need to do about it?
- Review the new Regs against any current tender disputes/decisions in which you are involved
- Seek legal advice as quickly as possible on awards you suspect may be open to challenge
How can I find out more about it?
Draft Regs: http://www.legislation.gov.uk/uksi/2011/2053/pdfs/uksi_20112053_en.pdf
Contact ViHPS for further information
Case Law Update
Director Liability -
Directors liable for indemnity costs for entire action
Graham Ashley-
Why do I need to know about this?
- In some situations the courts can hold Directors liable for costs of claims against their company
- We acted for directors in the above trial which highlights valuable lessons for directors deciding whether to defend claims or liquidate their business
What do I need to know about this?
- The case dealt with costs of a conversion claim against directors re: an engine which they alleged was included under a Share Purchase Agreement (SPA) for their purchase of the defendant company and the costs for other claims made directly against the company following its liquidation.
- The directors’ conduct in defending the claims was found to be reprehensible when deciding costs under Civil Procedure Rules (CPR 44.3) and was found to justify both directors being liable for costs of the entire action on an indemnity basis even though they had made various settlement offers
What do I need to do about it?
- Get the agreement right – The defence that the engine had been sold to the directors under the SPA, was deemed groundless as the engine was not listed in the accounts. This underlines the need for SPAs to clearly itemise what assets remain with the company and which are personal to the seller
- Complete Witness Statements/Evidence – The directors previously represented themselves
and did not deal with defences to claims against the company or alleged cross-
claims against the Claimant in their witness statements. This highlights how important it is for witness statements to deal with all allegations levelled - Objective Email evidence – emails on settlement negotiations/defences were critical
in terms of the conduct findings. Emails written in the heat of a dispute require
extra care to ensure they are clear, non-
confrontational, consistent and where appropriate marked ‘without prejudice’ - Written records of advice -
although insolvency practitioners were appointed and consulted no written record of advice was provided - Settle at the right time – The defendant directors were liable for legal costs which greatly outweighed the sums being claimed. It was a dispute which ought to have been settled at a more reasonable sum long before trial or through mediation.
How can I find out more about it?
Contact ViHPS for further information
Top Tips
Reviewing Contracts
Why do I need to know about this?
- Many people see contracts as relevant only for legal people or ‘if things go wrong’
- Commercial/technical staff are also important for evaluating risk early on
- Commercial terms & specifications are equally as important as legal boilerplate
- Clear, well-
written contracts reviewed & understood by your business can help foster better business relationships, protect margin and clarify issues so disputes do not arise
What Top Tips should I know about?
- Take care before acting on deals -
legal obligations can arise orally/by conduct - Make clear discussions are ‘subject to contract’
- Adopt a team-
based Risk Analysis approach to review - Involve legal experts early as part of review team
- Use clear & plain language
- Adopt appropriate fee structures & commercial terms
- Clearly define service scope
- Allocate risks to the party best placed to manage such risks
- Identify what your business wants from the contract & develop a negotiation strategy
- Protect risks in contract and develop ways of mitigating/managing risks
How can I find out more about it?
Contact ViHPS for help reviewing contracts & managing risk Home
Getting to Know ViHPS – Paul Page-
I am Managing Director and Founder of ViHPS. I lead the team and provide ‘hands on’
legal services to our clients. With over 17 years’ experience as a commercial Solicitor,
I am keen to add value to clients’ businesses. After private practice experience
at Nabarro Nathanson, I worked as in-
Paul Page-
paul@vihps.com
This Newsletter is only a general guide. It does not constitute legal advice. No responsibility can be accepted by the firm or authors for any losses arising out of any reliance on the information in this document. It is drafted as at September 2011 and information contained within it may be subject to future changes in law.
For further information on the above article or for legal advice on commercial matters
contact Paul Page-
Feedback Questionnaire
We would be grateful if you could send us answers to the following questionnaire so we can tailor our newsletter to your needs
Is the Bribery Act something that has concerned you previously, what actions are you intending to carry out to minimise the risk of bribery to your business?
Are you concerned about the new Agency Workers Regulations?
Are you concerned with defamation risks from use of social networking sites, do you undertake any measures to control or monitor your staff’s use of such sites?
What are your thoughts on the new time limits for public procurement tender challenges?
Are you concerned about Director Liability for claims brought against your company,
what measures does your organisation have in place (i.e. insurance, corporate governance,
non-
Are there any other legal topics or areas which you would like us to include in future newsletters?
What do you want from a law firm, what are your main criteria in evaluating a firm (i.e. budget, technical expertise, value for money, breadth of resources, commercial awareness etc)?
How do you rate this newsletter on a scale of 1 – 5 (1 being poor and 5 being excellent),
how can we improve it?
Please send us your replies to this section for us to collate by email to baigries@vihps.com. Thank you for your time! If you wish to unsubscribe from this newsletter mailing list then please email us confirming this at email@vihps.com.
Issue 1 September 2011