February 2022 - MLP Law

Where next for Cuthbert?

Image Credit: BBC News/Aldi

The Battle Royale between Colin and Cuthbert (M&S and Aldi) has reached a confidential settlement in the High Court. 

Whilst Aldi’s clever PR and Marketing spin won support amongst its customer base many high street retailers will be relieved at the ruling. 

The Intellectual Property, the creativity that goes into branding and product design take vast amounts of time, resource and risk on the part of the creators and we all benefit when companies are willing to innovate and bring new ideas to market.

The law has for a long time protected the authors and creators from those that would seek to cut corners and piggyback on the toil of others.  Whether that is passing off, design right, copyright or Trade Mark protection (there are also patents, however there were no patents involved in this case).
As the communications form Aldi suggest, we are likely to see Cuthy B re-appear in some form though I suspect it will be substantially different from the cake that previously graced its shelves.
1 – 0 going in to round two on the light up gin case. 
My money’s on M&S…..
Stephen Attree
For any intellectual property protection and intellectual property infringement advice please contact our Commercial and IP team on commercial@mlplaw.co.uk or alternatively call 0161 926 9969.

Inheritance row and the importance of instructing a reputable lawyer

Louise Reeves, daughter of the deceased property tycoon was accused of coercing her father into leaving 80% of his £100million estate to her when he died in 2019.

Kevin Reeves, the deceased, had originally prepared a Will in 2012 splitting his vast wealth with 80% being split between Louise Reeves, Bill Reeves and their half-sister Lisa, and the remaining 20% split between grandchildren of his other estranged son.

However, in 2014 he signed a new Will leaving the estate split with 80% to Louise and 20% to Lisa. The dramatic change between the two Wills left family members opposing probate being granted and claiming that the 2014 Will was a result of undue influence.

During the claim the Judge went on to criticise the solicitor, Daniel Curnock, who had prepared the £100million Will and ruled they had been “reckless and quite possibly dishonest”.

Reviewing the manner in which Daniel Curnock prepared the 2014 Will has found to be very strange and the court heard that the quality of the service had been compared to the quality of the clothes at Primark. The Judge said that it was ‘extraordinary’ that the solicitor has annotated and made amendments to the original Will executed in 2012 whilst it was still valid.

During the trial Daniel Curnock was questioned on the validity of the 2014 Will and the manner in which it had been prepared. Daniel Curnock persistently tried to avoid answering questions and the Judge found that he could not safely rely on the evidence from the professional.
The court heard that there were a number of text messages sent between Daniel Curnock and Louise Reeves in 2013 and a witness to a meeting with them claimed that there was a familiarity between the two of them. The Judge concluded that whilst the involvement of a solicitor would usually strengthen the presumption of validity of a Will, in this case it was ‘quite the reverse’.

The Judge ruled that the deceased did not know and approve the contents of the 2014 Will and held that the 2012 Will was valid.
This case highlights the need for a reputable and competent professional to assist in the preparation of a Will.

With today’s wide range of estates and complexity of family structures, it is important to seek professional guidance to ensure matters are dealt with properly.

How can MLP Law help?
Where possible, you should always speak to a specialist lawyer experienced and reputable in this area of law.  The process of preparing a Will and ensuring your affairs are in order is fundamentally important.

MLP Law have a specialist team who are able to provide the best advice on what’s needed according to your situation, taking you through the process to guarantee a service that I tailored your needs.

 Our offices are open for covid-19 safe appointments, alternatively we can discuss your instructions via telephone, video call or email.
Contact Details for Wills, Trusts and Probate Team: 0161 9269 969 or WTP@mlplaw.co.uk

The allocation of shares and the importance of significant control

“I own 51% of this company!”
Big Business (1988)
The allocation of shares amongst shareholders might not immediately seem like a dramatic area of law. Saying this, not only has it inspired the plots of countless books, shows and films over the years (most recently in the thrilling season finale of Succession), it has also led to many difficulties for companies who did not consider the importance of ‘significant control’.
Significant control
A person with significant control (PSC) over a company is usually an individual who holds more than 25% of the shares and/or the voting rights in the company (NB: there are other ways of meeting PSC status).
If the (or one of the) direct owner of a UK company is a legal entity (such as another company) and would have met one of the PSC conditions had it been an individual, it known as a registerable relevant legal entity (‘RLE’).
Knowing which shareholders are PSCs/RLEs matters because they need to be registered. In 2016, the ‘PSC regime’ was rolled out. This means that all UK companies (apart from those listed on the London Stock Exchange) are now required to keep a register of PSCs and RLEs and let Companies House know who is on it and, if it changes, when and how.

Not identifying PSCs/RLEs or notifying Companies House when they change is a criminal offence; both the company itself and any officer in default will be liable.
A company’s most important decisions usually need to be decided on by its shareholders, through voting at a general meeting.
The default position of a general meeting vote is that each shareholder gets one vote. However, in most cases there can be a poll system whereby the weight of each shareholder’s vote is proportionate to the amount of shares they hold.

Put simply, the higher the proportion of shares you hold, the more chance you have of decisions going your way.
This becomes even more important when we look at the voting thresholds that need to be met for certain decisions to be made. The Companies Act and a company’s Articles of Association (i.e. the list of rules by which it has agreed to operate) outline these thresholds.

Most shareholder decisions are made by way of an Ordinary Resolution. Unless the company’s Articles of Association state a higher percentage, an Ordinary Resolution requires at least 50% of the shareholder vote to pass.

Other decisions such as changing the company name or its Articles or rights attaching to the shares (which could have substantial ramifications, for example for the company’s directors) require what is known as a Special Resolution. Unless the company’s Articles state a higher percentage, a Special Resolution requires 75% of the shareholder vote to pass.

As such, unless the Articles specify a higher threshold, a holder of more than 25% of the company’s voting rights is able to stop a Special Resolution that it doesn’t agree with from being passed.
If you are:
·         incorporating a company and deciding on the allocation of shares between its owners;
·         selling shares, be that to existing shareholders, to third parties or selling back to the company
·         issuing new shares

It is extremely important to consider:
·         how many shares each holder has in relation to the other holders and
·         the voting thresholds rules in place as this translates to how much control they will have when it comes to decision-making.
If you wish to discuss the contents of this blog further or are looking at setting up your own business please get in touch at corporate@mlplaw.co.uk or alternatively call 0161 926 9969.

Government Announcement – New gratuity and tipping bill in the works

The Parliamentary Under-Secretary for the Department for Business, Energy and Industrial Strategy Paul Scully announced on 1st February 2022 that the Government intends to propose a bill protecting tips and gratuities for employees “as soon as parliamentary time allows”. Mr Scully’s announcement outlines the Government’s stated belief that all tips rightfully belong to workers.

If introduced, the legislation would legally require employers to distribute and pass on all tips, gratuities and service charges to their employees without any deductions. It would also introduce a new right for employees to request a record of an employer’s tipping practice in order to allow them to bring forth a credible claim in the Employment Tribunal where they believe their employer has not complied with the legislation.

If you are a business in the hospitality or service industry and would like advice on dealing with tips and gratuities, or to discuss the impact the proposed legislation may have on your business, please do not hesitate to get in touch with us on 0161 926 9969 or employment@mlplaw.co.uk and one of our Legal 500 recommended experts will be able to answer your questions. For further updates on this situation and other relevant topics follow us on Twitter @HRHeroUK.

Government lifts all Covid-19 restrictions – what does this mean for your business?

On 21st February 2022, Prime Minister Boris Johnson announced that, from Thursday 24th February 2022, mandatory Covid self-isolation will end, as will the Covid support payment scheme. Furthermore, from 1st April 2022, free Covid testing will also end.

This development effectively shifts the responsibility for public health and safety away from the Government and on to individuals, and in particular employers.

So what does this mean for your business?

As the responsibility of managing Covid cases effectively passes over to employers, each business will need to assess its own approach to how it will handle Covid cases amongst its workforce. This will include deciding whether to continue to require employees to remain away from the workplace if they test positive for, or show symptoms of, Covid.

For many businesses, whose employees can perform their duties from home, this may be fairly straightforward, as employees could simply be asked to work from home if they test positive or have symptoms but are otherwise fit enough to work.

However, employers of workers who cannot perform their duties from home (for example those working in retail or hospitality) will have a difficult decision to make. That’s because, although an employer can require employees who have tested positive or who have symptoms to stay away from work, they would still be obliged to pay the employees in full if they have presented themselves as fit for work (for example if they are asymptomatic or only have very mild symptoms) but are unable to work from home.

If they are too unwell to work, usual sickness absence, and sick pay, principles would apply.

Conversely, employees who are not ill but decide to self-isolate despite not being required to do so (whether by guidelines or by their employer), may not be entitled to pay unless they have agreed a period of leave with their employer.

What about employees who are afraid of catching Covid in the workplace?

Given the trend in recent Employment Tribunal decisions, it seems highly unlikely that a generalised fear of catching Covid will justify an employee in refusing to attend work. This is especially so now that all restrictions have been lifted and the country enters a phase of “living with Covid”. 

However, every employer has a duty of care to their employees and each business will need to assess the risks which apply in their specific circumstances. This may mean taking a slightly different approach to protect vulnerable employees or continuing to put in place measures to ensure a “Covid secure” working environment, even where doing so is at the employer’s expense (such as by [paying employees to stay away from the workplace).

How MLP Law can help?

With the most recent announcement the rules regarding Covid seem to always start with ‘it depends’. If you are unsure about your specific situation as an employee or an employer, please do not hesitate to get in touch with us on 0161 926 9969 or employment@mlplaw.co.uk and one of our Legal 500 recommended Employment Law solicitors will be able to answer your questions. For further updates on the situation and other interesting topics follow us on Twitter @HRHeroUK.