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Planning Obligations - More Process But Also More Opportunities Despite publicity regarding the changes to Section 75 of the 1997 Act, there still appears to be some uncertainty regarding modification procedures and how applications will be evaluated. The Town and Country Planning (Modification and
Discharge of Planning Obligations) (Scotland) Regulations 2010 are designed to address these uncertainties, but - as Moray Thomson, Partner, Planning highlights - there are potential pitfalls in the Regulations for the unwary applicant and some practical issues should be considered. (Jan.12)
How Employers Can Lower Sickness Absence Levels In 2012 - Leading To Significant Cost Savings
Gina Wilson, Partner in Employment notes that, given the cost of sickness absence to employers, reducing absence levels can lead to significant savings. The CBI “Healthy returns? Absence and workplace health survey 2011” found that, in 2010, absence cost the UK economy over £17bn, with the median total cost for each absent employee being £760. (Jan.12)
Building Information Modelling (BIM) The Government recently announced in a strategy paper that within the next 5 years Building Information Modelling (BIM) will be used on all public projects. It proffers
a wealth of advantages and, should it fulfil its promises, it’s likely that the private sector will follow suit, so it's vital that all construction professionals have knowledge of BIM, which is the technological successor to CAD. Lesley Currie, Projects Solicitor, details some considerations for the industry. (Dec.11)
Business Common Sense Should Prevail Says Supreme Court Where there are two possible ways to interpret a contract, the court is entitled to prefer the interpretation which is consistent with business common sense. This was the view of the Supreme Court in its decision in Rainy Sky SA v Kookmin Bank
issued on 2 November 2011, notes Shona Frame, Partner. (Dec.11)
Automatic For The People: The Impact For Employers Of Auto-Enrolment Provisions The Pensions Minister recently reiterated his commitment to statutory pension auto-enrolment requirements being implemented in the course of next year, following some reports that the government was considering delaying the reforms. From 1 October 2012, UK employers will require to automatically enrol workers into a qualifying pension scheme. Peter Trotter, Partner & Head of our Pensions & Employee Benefits Group outlines what this will mean for employers. (Nov.11)
How To Get Paid It's a familiar scenario. You've done the work, issued an invoice and several
reminders and have still not been paid. Laura Gow, Associate in Commercial Dispute Resolution, examines - what can you do next? (Nov.11)
Changes To Time Limits For Aggrieved Public Contracts Bidders The Public Procurement (Miscellaneous Amendments) Regulations 2011 came into force on 1 October 2011, implementing significant changes to the time limits for aggrieved bidders to raise legal proceedings for a breach of the Public Contracts Regulations 2006 and Utilities Contracts Regulations 2006, both of which apply to public procurements in England, Wales and Northern Ireland, details Julie Hamilton, Partner in Commercial Dispute Resolution. (Oct.11)
The New Construction Act - Practical Consequences For Subcontractors As a result of industry concerns about continuing payment delays and problems with access to adjudication, the Local Democracy, Economic Development & Construction Act 2009 was enacted to amend the provisions thought to be failing in the Housing Grants, Construction & Regeneration Act 1996, the legislation designed to improve cash flow for subcontractors. David Wilson, Senior Associate, Construction Group, highlights the major amendments and practical consequences for subcontractors. (Oct.11)
Duties Of Care In Groups Of Companies - Just Because A Liability Is In A Subsidiary Doesn't Mean The Risk Is Contained A common assumption in relation to groups of companies is that each company has
its own distinct liabilities, and that, in particular, the liabilities of a subsidiary will be contained there and will not pass up to its holding company. Neil Kennedy, Corporate Partner, notes that in the recent case of Chandler v Cape plc, it was held that, notwithstanding the general rule that a holding company is not responsible for the liabilities of its subsidiaries, a holding company could be responsible to an employee of its subsidiary for damages for asbestosis if in the circumstances a duty of care ought to apply. (Sept.11)
Change In Planning Law - Demolition Is Now Development Frances Pacitti, Associate, Planning Group, comments on changes to rules governing demolition in the Scottish planning system - The Town and Country Planning (Demolition which is not Development) (Scotland) Revocation Direction 2011 has revoked its predecessor from 2001, meaning that the demolition of any building will be development for the purposes of the Town and Country Planning (Scotland) Act 1997. Demolition will therefore be subject to the relevant planning and, if appropriate, environmental impact assessment requirements. (Sept.11)
Shared Services Are Now Firmly On The Agenda: Is There The Political Will To Make Them Work? Local authorities and other public bodies are having to do more with less, as national debt reduction measures and reduced budgets bite. While in previous recessions governments have acted to slow the rate of public spending growth, the scale of downwards adjustment this time is quite radical. Duncan Osler, Partner and procurement specialist, notes that, though a daunting challenge, some public bodies are applying a fresh, realistic approach to finding solutions to mutual problems - such as collaborative ways of working. (Aug.11)
Steady State in Scotland’s Corporate Deals Market As far as Scotland’s corporate deals market is concerned, Robert Burns, Corporate Partner, currently hears the comment that “surely there are no deals happening.” Here he notes that is certainly not the case, and it has not been the case for some time. So, while there are certainly no signs of a deals boom, there has been a steady trend of deals being done, and by no means all related to distressed asset sales. He examines whether there's a theme with which to characterise the current corporate deals marketplace? (Aug.11)
Pure Economic Loss Shona Frame, Construction Partner, examines whether a contractor be held liable to an employer for economic loss on the basis of a negligent breach of a duty of care where the contractor is not liable under the contract? (Aug.11)
As Storm Clouds Gather, It Pays To Know Your Rights If you are asked to change roles or transfer your employment to another organisation, a grasp of employment law could provide a lifeline. With the new government at Holyrood and continuing economic uncertainty, it is predicted that we will soon see further changes to many public-sector organisations. Increased outsourcing, collaboration and partnering will be on the horizon, particularly in the further education sector. Employers looking to encourage staff to change roles or transfer their employment contracts to another organisation will be mindful of the employment law considerations, note Katy Wedderburn, Employment Partner, and Jim Burberry, VAT Partner at Baker Tilly. (July.11)
Agency Workers Regulations 2010 - What Do They Mean For Your Business? Katy Wedderburn, Partner in our Employment Group highlights that if you currently employ agency workers, the new Agency Workers Regulations 2010 coming into force on 1 October 2011 have the potential to significantly impact on your business. With around 1.3m agency workers in the UK labour market, these regulations will now offer some of these workers equivalent protection of their employment rights to a permanent employee - and it is for both the agency and the hirer to ensure these are respected. (July.11)
Deal Or No Deal? In conflict situations, mediation is an alternative to the bitter litigation pill. Contrary to popular belief, it is not the “soft option” nor does suggesting it to your adversary signal that your case is weaker than water. Arlene McDaid, an Associate in Commercial Dispute Resolution, asks if - for those who have flirted with the idea - is it time to make a leap of faith? (July.11)
Who Owns the Float?
Shona Frame, Partner, notes that the issue regarding float comes down to the question of whether, if the Contractor has built float into his programme, the Employer should get the benefit of it, even if any Employer-related delay occurs. From a Contractor's point of view, any float has been built into the programme for the Contractor's own benefit - allowing them to manage the sequence and timing of activities, allocate resources appropriately and protect against liquidated damages. Given that, the Contractor will argue, they should be able to dictate how it is used. (July.11)
Working North of the Border - Key Differences between JCT and SBCC Contracts The aim of the Scottish Building Contract Committee (SBCC) in its standard form contracts is to create as much uniformity across the UK as possible, adopting the JCT forms wherever possible. However, it remains the case that because of the different legal system north of the border, there are certain key differences in
approach - Shona Frame, Construction Partner, details them here. (July.11)
The Countdown Is On To Big Things Happening In Construction Legislation Soon Mike Barlow, Partner in Construction Law suggests what businesses can do to get ready in advance? (July.11)
Tolent Contest Fails To Remove X-Factor In a blow to referring parties in adjudications, the Scottish Courts have ruled in Profile Projects v. Elmwood that so called "Tolent clauses" which provide for the referring party to pay both parties’ costs of the adjudication, win or lose, will be upheld. Shona Frame, Partner in our Construction Group comments and notes that this has long been controversial. (July.11)
Rarely Used Way Of Terminating A Lease Most well-drafted leases of premises in Scotland contain an irritancy clause - a mechanism which allows the landlord to terminate the lease in the event that the
tenant breaches its obligations under the lease. But what if the lease doesn't contain such a clause?
Ian Bowie, Real Estate Partner, notes that the landlord may be entitled to rescind the lease on the basis that the tenant is in material breach of its obligations. (June.11)
ICO Imposes £120,000 Fine For Sensitive Personal Data Breach Many will be familiar with the mistake of sending an e-mail to the wrong recipient, but Valerie Surgenor, IPTC Partner, highlights that a Council was recently faced with the financial consequences of making the mistake of e-mailing sensitive personal data to the wrong recipient on several occasions - the UK Information Commissioner’s Office served them with a hefty £120,000 monetary penalty. (June.11)
Employers Must Face Up To Reality Of Retirement Changes April 2011 was the last opportunity for employers to compulsorily retire staff who will have reached the age of 65 by the end of September this year. Now that the compulsory retirement of those aged 65 is no longer available to employers, unless the employee wishes to retire, any termination of an employment contract will need to be done on one of the permitted fair grounds details Karen McGill, Employment Law Partner. (June.11)
Finance Scheme For Green Business A new green finance initiative backed by the Carbon Trust in partnership with Siemens Financial Services - providing a fund worth £550 million to UK-based
businesses for the installation of low carbon and energy efficient technologies - opened for applications in late April this year Notes Nick Jones, Partner & Head of the Energy Group. (June.11)
Challenges In Adjudication Challenges to enforcement of Adjudicator's awards have been par for the course since the introduction of Adjudication. The Courts, however, remain reluctant to uphold such challenges, as Shona Frame and Fritha Wheeler-Ozanne of our Commercial Dispute Resolution Group highlight. (May.11)
Bribery Act 2010 - Guidance Published The UK Ministry of Justice has recently published its revised final guidance on the UK Bribery Act 2010 which is now scheduled to come in to force on 1 July 2011, highlights Valerie Surgenor, Compliance & Regulatory Partner. (May.11)
Corporate Manslaughter - Some Questions To most involved in the construction industry, the fact that the UK's first ever corporate manslaughter prosecution arose from a construction accident will have come as no surprise. Craig Turnbull, Health & Safety Partner, notes that it is, however, worth considering whether there are any lessons to be learned from the prosecution. (May.11)
It’s Not Always In The Bag! David Flint, Partner, comments that IP owners (or perhaps their lawyers) need to get a sense of perspective and remember that IP protection is a balance and that balance must mean that the protection afforded to certain types of IP is not absolute. Nowhere is that necessary balance greater than in relation to trademarks. (May.11)
Failure To Mediate May Cost You The general rule in a Court action is that expenses are awarded to the successful party. What constitutes “success” may, however, not always be clear. Shona Frame, Partner in Contruction, comments on the recent decision in the English Court of Appeal case of Rolf v De Guerin
which demonstrates that the parties’ conduct in the case can be a crucial factor for the Judge awarding expenses. (Apr.11)
Insurance Gender Agenda Outlawed Julie Hamilton, Commercial Dispute Resolution Partner, highlights that the European Court of Justice (ECJ) has issued a landmark ruling in a case brought by the Belgian consumer group, Association Belge des Consommateurs Test -Achats ASBL and others against the Belgian Government. The issue to be determined was whether using gender to calculate insurance premiums and annuity rates breached EU rules on equality. (Spring.11)
Bias In Adjudication - The Courts’ Approach In the quest for routes to resist enforcement of an Adjudicator's decision, parties often turn to the issue of bias of the Adjudicator as a potential ground, comment Shona Frame & Fritha Wheeler-Ozanne, Commercial Dispute Resolution Group. (Mar.11)
What Does The Recession Mean For Health & Safety? Craig Turnbull, a Partner in Health & Safety law, notes that not even the Health & Safety Executive is immune from Government cutbacks. (Mar.11)
Adjudication - When Will an Adjudicator’s Decision Not Be Enforced? Shona Frame, Construction Partner, comments on the recent case of RBG Ltd v SGL Carbon Fibers Ltd which is of interest partly because it is one of the very few decisions dealing with NEC3, but also because it is one of the
rare instances of the Court refusing to enforce an Adjudicator’s decision. (Mar.11)
Putting De Facto Directors Into The Spotlight Neil Kennedy, a Corporate Partner, notes a recent case in the UK Supreme Court which has drawn attention to the consequences faced by de facto directors of companies. But what exactly is a de facto director and what are their duties to their company, both in trading and in insolvency? (Mar.11)
Court Ruling on Disclosure Of Commercially Sensitive Information Parties who enter into contracts with public bodies are often concerned that related contract info will be subject to an information request. The danger being they may - in complying with this obligation - disclose commercially sensitive details. Valerie Surgenor, Senior Associate highlights a recent High Court decision coming as a blow to parties (and public bodies) looking to protect commercially sensitive information from disclosure. (Feb.11)
Monetary Penalties For Breach Of UK Data Protection Act The Information Commissioner’s Office has handed out the first ‘fines’ for breaches of the Data Protection Act 1998 - the first issued since new powers to fine were given to the ICO in April 2010, updates Valerie Surgenor, Senior Associate in the Technology Media & Communications Group. (Jan.11)
Show Me The Money! - European Parliament Approves New Late Payments Regime The European Parliament recently approved a proposal for a new Directive regulating late payment of commercial debts, which aims to give further protection and confidence to creditors providing goods and services - in particular SMEs, comments David Flint, Partner. (Jan.11)
Make Sure You Don’t Pick A Ropey Company Name Neil Kennedy, Partner in the Corporate Group, notes that the decision of the Company Names Tribunal in a recent case shows care should be taken to avoid choosing a company name which could affect the goodwill of an existing business. (Dec.10)
UK ICO Finds Google UK Guilty Of Drive-By Snooping, But Imposes No Fine Valerie Surgenor, Senior Associate in the Technology Media & Communications Group, comments on the result of the UK Information Commissioner's recent investigation into alleged privacy breaches by Google UK in relation to Street View vehicles inadvertent collection of personal info from private internet connections. (Nov.10)
The Equality Act 2010 - What Does It Mean For Employers? Rupa Mooker, Senior Associate in the Employment Group, highlights the effect The Equality Act 2010 - the most comprehensive piece of discrimination legislation in the UK - will have on all employers, large or small. (Nov.10)
Construction Act Changes In Force? Shona Frame, Partner in the Construction Group, updates on when changes to the Construction Act 1996 are expected to come into force. (Nov.10)
Split Decisions Could Be An Adjudicators’ Best Option David Arnott, Partner and Head of Commercial Dispute Resolution, highlights a recent case in the Technology and Construction Court which decided that an adjudicator’s decision made partly without jurisdiction rendered the whole decision unenforceable. (Nov.10)
Non-compliance Leads To More Than ‘WEEE’ Consequences Jamie Grant, Partner and Head of the Environment Group, notes that September 2010 saw the first UK prosecution for an offence under the producer responsibility legislation for waste electrical and electronic equipment (‘WEEE’). (Nov.10)
Agreements To Agree Can Be Disagreeable Douglas Lamb, Partner in the Real Estate Group, comments on a recent decision of the Inner House of the Court of Session in the case Scottish Coal Co. Ltd v Danish Forestry Co. Ltd which has reinforced the potential for an “agreement to agree” to be ruled unenforceable. (Oct.10)
Are Your Directors Human? Does your company have corporate directors? Neil Kennedy, Partner in the Corporate Group, highlights that some businesses have sought to mitigate the risks of potential personal liability for directors by interposing a sole 'corporate director', with individual directors then appointed directors of this - but those with such an arrangement in place need to be aware that the arrangement may not protect the individual directors, as from 1 October 2010 all companies must have at least one human director. (Oct.10)
Be Sure, Be Careful How You Market… Often marketing will come in the form of newspaper advertising or “flyer” leafleting campaigns, which are targeted at certain consumers. Such marketing campaigns are regulated by the UK Code of Non-Broadcasting Advertising, Sales Promotion and Direct Marketing (CAP Code) and - as David Flint, Technology Media & Communications Partner highlights - occasionally some campaigns will exceed what is considered acceptable and fall foul of the Code. (Oct.10)
Sharp Increase In Tribunal Claims The Tribunal Service recently released its annual statistics report for 2009/10, the key findings of which indicate a sharp increase in the number of claims being brought to the Tribunal, believed to be partly as a consequence of the recession, details Karen McGill, a Partner in the Employment Group. (Sept10)
Adjudicator’s Jurisdiction – General Objections Could Lead To Major Problems Shona Frame, a Partner in our Construction Group highlights that challenging an Adjudicator’s jurisdiction is often the first step in responding to a Referral Notice, but given the Courts’ reluctance to enforce such challenges, care must be taken as to how such challenges are framed. (Sept.10)
Protect Privacy Online - And Avoid A Fine The Information Commissioner’s Office has published a new Code with “do’s and don’ts” for the processing of personal data gathered online. David Flint, Partner in MacRoberts Technology Media & Communications Group, says that data controllers are well advised to follow the Code in order to avoid falling foul of the provisions of the Data Protection Act. (Sept.10)
Redundancy & Army Reservists Since 2003, in the region of 20,000 army reservists have been mobilised with very few employment disputes being raised, notes Katy Wedderburn, Employment Group Partner. The Reserve Forces (Safeguard of Employment) Act 1985 is designed to protect reservist soldiers and ensure that they should not be treated more or less favourably than other employees. (Aug.10)
What Do The Scottish Government’s New Waste Plans Involve? Andrew Orr, Partner, comments on The Scottish Government's recently published Zero Waste Plan, which is intended to promote a change in the way we deal with waste, whether as households, businesses, or public sector organisations. (Aug.10)
Cartels - Fined for ‘Steeling’ From Customers & Bathrooms Flushed-Out David Flint, Partner, highlights two recent Competition Law cases where the European Commission imposed significant fines on numerous steel producers across Europe and manufacturers of bathroom equipment for their involvement in price-fixing cartels. (Aug.10)
BSF Cuts Leave Contractors & Councils In The Lurch With the Education Secretary's recent announcement that The Building Schools for the Future (BSF) programme is to be halted, with all BSF programmes which had not reached financial close being cancelled, David Henderson, Partner in the Projects Group at MacRoberts, notes the large financial impact this will have on councils and contractors in relation to costs incurred per now-cancelled projects. (Aug.10)
No Detriment Guarantee Can Have A Costly Effect Katy Wedderburn, a Partner in the Employment Group, looks at a recent case which highlights the importance of carrying out a proper investigation of contractual rights in TUPE transfers. (Aug.10)
Developments In Dispute Resolution - The Arbitration (Scotland) Act 2010 One of the most significant developments in Scotland in 2010, for the dispute resolution world, was the long awaited Arbitration (Scotland) Act 2010. Shona Frame, Partner, notes that what it does is finally encapsulate, in one place, the Scottish law on arbitration - thereby providing clarity where this was previously lacking. (July'10)
When Good Neighbours Become Good Friends Moray Thomson, Senior Associate in MacRoberts Planning Group, comments on a new consultation paper recently published seeking views on two sets of
proposed regulations further implementing the Planning etc (Scotland) Act 2006 and introduce Good Neighbour Agreements. (July.2010)
How To Change Employer Mid-Stream With several employers recently facing difficulties, Mike Barlow, Partner, Construction Group, notes what a contractor should look out for if an employer goes into administration and - in order to salvage the project - a new employer is proposed. (June.10)
Landowners: Set Your Sites On Renewables Nick Jones, Head of MacRoberts Energy Group, comments on landowners realising the renewables potential to their assets. (June.10)
ECJ Rules on Contract Variations! Duncan Osler, a Partner at MacRoberts specialising in Procurement matters, highlights a recent European Court of Justice judgment clarifying the test to be applied when a contracting authority seeks to vary an existing public contract, particularly where a sub-contractor is replaced prior to, or following, contract award. (June.10)
Avoid Recipe For Disaster Shona Frame, a Partner in MacRoberts Construction Group, analyses the attitude of the courts to which contract terms should take precedence when they conflict in the light of a
recent court ruling. Avoid mixing standard contracts and bespoke amendments, she advises. (May.10)
Getting The Lowdown On The New UK Bribery Act Valerie Surgenor, Senior Associate, Technology Media & Communications Group, outlines the new legislation introduced to reform UK bribery and corruption law - simplifying the law, whist allowing a more effective response to offences that occur in the UK or abroad. (May.10)
With Or Without Prejudice? Julie Hamilton, Partner, Commercial Dispute Resolution Group highlights that some people make the mistake of assuming that including the words “without prejudice” in correspondence provides a magical shield which protects all statements made from being relied upon in court at a later date. (Apr.10)
A Renaissance For Scottish Arbitration Shona Frame, Partner, examines the Scottish Arbitration Act which has given tribunals new teeth to ensure fair and impartial hearings, with no undue expense or delays. Great hopes have been pinned on the new rules, making Scotland an attractive venue for dispute resolution. (Apr.10)
Can You Tell Your Blogging Employees To Blog Off? Karen McGill of our Employment Group and Valerie Surgenor of our Technology Media & Communications Group highlight a significant employment issue arising from the recent explosion of social networking - the vast majority of companies’ employment contracts and additional policies do not adequately deal with the issue. (Apr.10)
Taking a look at the New CRC Energy Efficiency Scheme: What does it mean for organisations involved in PFI & PPP? Andrew Orr, Partner, Projects Group comments on the department of Energy & Climate Change's recently issued updated guidance on the new CRC Energy Efficiency Scheme which aims to reduce carbon dioxide emissions through energy efficiency. (Mar.10)
Agency Workers - Mind The Gap! The question of whether a person supplied by an agency to another business ('an end-user') can ever become an employee of that end user has been considered by the appeal court, details Graham Mitchell, Partner, Employment Group. (Mar.10)
Defences in Adjudication The issue of what material can be considered by Adjudicators, whether material submitted by a Referring Party or defences put forward by Respondents, has come before the courts on several occasions. Shona Frame, Partner in MacRoberts Construction Group notes that the position does now appear to have been clarified following a string of cases. (Feb.10)
Taking More Than The Biscuit? Changes in EU law are set to transform website user options regarding sites logging their behaviour by means of cookies, especially Flash cookies, notes Valerie Surgenor, Senior Associate in MacRoberts Technology Media & Communications Group. (Feb.10)
Contractual Remedies For Adverse Weather The impact of seasonally adverse weather on construction sites and what contractual remedies may be available for the resultant delays and costs are detailed by Shona Frame, Partner in Construction at MacRoberts. (Feb.10)
Money Attachment - Another New Diligence A new form of diligence was recently created allowing creditors to seize money belonging to a debtor in satisfaction of a debt. Julie Hamilton, Partner in Commercial Dispute Resolution at MacRoberts explains. (Jan.10)
Civil Monetary Penalties - Government Consultation: MacRoberts 16 December 2009 response to the Ministry of Justice Consultation. Click here to view our e-update of 13 January 2010 regarding the Government's Consultation Response. (Dec.09 & Jan.10)
The Net Effect Of Net Contribution Clauses A case involving innovative arguments seeking to get around the terms of net contribution clauses in relation to collateral warranties is examined by Shona Frame, a Partner in the Construction Group at MacRoberts. (Jan.10)