About Emma Emery

Commercial litigation lawyer and problem solver at Freeth Cartwright LLP.

Positive news for the UK food industry

I have just read the recent Food Sector report prepared by Lloyds Bank which, as a member of Freeths food sector group makes for positive reading.  Whilst not without challenges, the sector (being one of the largest of the UK manufacturing industries) is growing and will make a significant contribution to improving the UK manufacturing industry and the economy as a whole.

Food 2 apples, conveyor belt

The majority of food businesses who participated predict job creation and growth in the coming years.  Largely, it seems, through overseas trade but also through product innovation.

There are challenges such as the sustainability and cost of supply and also regulatory issues.  However, those appear to be being met head on by the likes of the Efra (Environment, Food and Rural Affairs) committee report on food security which proposes diversity in produce and policy reform and also the UK Food and Drink International Action Plan produced jointly by UKTI and Defra which sets out proposals to lift trade barriers and unlock new markets.

The UK government is also promoting the EU Protected Food Name Scheme in order to protect the authenticity and origin (and therefore the value) in foods which are in demand overseas.  Examples of in the North West are Traditional Cumberland Sausage, Beacon Fell Lancashire Cheese and Lakeland Herdwick Sheep.

A link to the Lloyds report can be found here

http://resources.lloydsbank.com/insight/food-and-drink-report/?WT.mc_id=2014_Q3_EEcomm

Look out for more articles and blog posts from our food sector group in the coming months and please get in touch if you have any queries.

 

 

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Freeths new partnership with the ICM

ICM_CP_RGBI am pleased to announce that Freeth Cartwright has been appointed as the corporate legal partner to the Institute of Credit Management after working with the ICM for the last two years providing legal training to its members.

As part of the partnership we will be running a free legal helpline to all members which provides 30 minutes free telephone advice on any legal issues faced in the course of their business.  This covers not just advice on debt and asset recovery but on anything from property matters, contracts, intellectual property and employment issues.

Members can access the helpline by calling 0845 077 9698 or completing the contact form on the ICM website.

In addition we will be taking part in the ICM masterclasses across the country, hosting the annual legal conference in November and will have a regular column “Legal Matters” in the monthly CM magazine.

For further information please contact me

Emma Emery H&S small - use this versionEmma Emery

Senior Associate

emma.emery@freethcartwright.co.uk

An audience with Lord Dyson, Master of the Rolls

Manchester Civil Justice Centre courts low resLast Friday the Manchester legal community had the honour of a visit from Lord Dyson, the second most senior judge in the country and the Head of Civil Justice, who had requested to meet with local practitioners.

Having recently given judgment in the Mitchell v MGN case on relief from sanction he was a man everyone wanted to meet and the courtroom in our state of the art Civil Justice Centre (described by Lord Dyson as second to none) was packed.

After a brief introduction Lord Dyson opened the floor to questions which, unsurprisingly, centred around the decision in Mitchell and the Jackson reforms.  On the question of Mitchell Lord Dyson was unrepentant about the consequences of the decision when asked whether the refusal to grant relief was proportionate to the failure to comply with the rules.  He said he was at pains not to send out the wrong message about failure to comply whilst stressing the exemptions of triviality and good reason.  He likened the requirement to comply to that of Landlord and Tenant section 25 notices.

When it was suggested in one question that some practitioners may not have read Mitchell in full he was – quite rightly I thought – taken aback and his response was that he thought it part of a solicitors professional duty to have read it!

Questions were asked about the ability of the courts to cope with a likely deluge of applications for extensions of time and relief.  Lord Dyson confirmed – following a newspaper leak earlier in the week – that the Civil Justice Committee were looking at whether to provide for the parties to agree between them one extension of time.

It was refreshing to hear Lord Dyson’s direct and honest approach and get an insight into the thinking behind Mitchell and other recent reforms.

Emma Emery H&S small - use this versionEmma Emery

Senior Associate

If you have any queries regarding this article, please do not hesitate to contact me at emma.emery@freethcartwright.co.uk

 

Freeth Cartwright wins appeal against fine issued to “spam” texting firm

Christopher Niebel v Information Commissioner – 14 October 2013

We have just succeeded in an appeal to the Information Rights Tribunal against a fine of £300,000 issued by the Information Commissioner against one of our clients for a breach of the Privacy and Electronic Communications Regulations (PECR).

PECR governs the way in which text marketing messages can be sent. The fine was the first of its kind for a breach of PECR and it had been issued for texts that were alleged to have breached the regulations.

Key to the outcome of the appeal was whether the contents of the texts sent were of a kind that was likely to cause “substantial damage” or “substantial distress” to the people who received them. The Tribunal found that whilst it was possible that texts of this kind could lead to recipients incurring charges for texting STOP or receiving texts abroad they were unlikely to cause substantial damage. In giving its reasons why it found no likelihood of substantial damage the Tribunal said “it takes a very short time indeed to give a tut of irritation and delete spam messages such as these”.

Similarly the Tribunal found that the texts were not likely to cause substantial distress. In making its decision the Tribunal stated “Almost all mobile phone users, in our judgement, will recognise these texts for what they are”.

I think this is a sensible judgment from the Tribunal.  People may find texts like these mildly irritating but it is another thing altogether to say they caused substantial damage or distress. In this case the contravention was in respect of only 286 texts yet the Information Commissioner issued a fine of £300,000.

I would welcome your views?

To read the judgment click here:http://www.informationtribunal.gov.uk/Public/search.aspx

For more information on whether “spam” texts are legal see my previous blog post:

https://freethsmanchesterbusinessblog.wordpress.com/2013/05/17/spam-texting-is-it-legal/

Is litigation really a waste of time??

clock face, time

This is a comment I hear made time and again by directors and business owners when they become embroiled in litigation; It’s a distraction from core duties and takes up too much time which I could be using to generate income and profit.

So, is it worth it?

If you have a good claim then the answer is ‘yes’ because it is possible to claim back the value of the management time you have incurred in remedying the problem caused by the party you are in dispute with.

I recently settled a claim where the opponent easily agreed that management costs should be paid as part of the settlement but it is not always that easy. As a rule, management costs are recoverable but the problem is that they are difficult to prove and not everyone is as trusting as the parties in my recent case.

Here are some tips. They refer to a breach of contract claim but the same principles would apply to a claim for negligence or breach of warranty, for example.

What can I claim?

  • The cost of staff diverted from their usual activities which causes significant disruption to your business.
  • The profit on turnover, sales or opportunities lost as a result of diverting time to remedy the problem. This can be different from the losses suffered as a result of the breach itself.

How do I prove it?

This is easier in a small business than in a larger one but it should be possible. The key thing is to keep contemporaneous records.

  • Evidence of the amount of hours usually spent by a member of staff on their usual activities and the amount of time spent on those activities since the breach occurred
  • Evidence of a decrease in turnover and profit (although the latter is not necessarily required)
  • Evidence of lost sales or opportunities when your sales or business development staff have been diverted – examples include diary records, time sheets, or internal correspondence
  • Ensure all staff keep time sheets and report on a daily or weekly basis to a nominated person as to the amount of time diverted from their usual activities.

Preparation and organisation is key. Make sure all members of staff involved in investigation or remedying the breach know that they must maintain records and nominate one member of staff to be responsible for collating and keeping those records.

How is the wasted time valued?

  • Actual losses (additional expenditure, lost revenue, sales or opportunities): This can be difficult to quantify insofar as it is attributable to the time each member of staff spent investigating or remedying a breach. Though it is arguably easier to value for sales staff or staff involved in production as it should be possible to value the turnover or sales attributable to that person.
  • If actual losses cannot be proved then wasted time may be valued by calculating an hourly or daily rate according to salary and applying that rate to the hours or days identified in the contemporaneous records referred to above. You should at least be able to claim the cost of the employment of that member of staff for the diverted period of time.

Points to note

  • You cannot claim time spent on bringing the claim itself. For example preparing witness statements or collating evidence. The costs of dealing with the claim itself, as opposed to remedying the problems caused by the breach of contract or negligent act, are recoverable in the same way as solicitors costs. So, the costs of wasted management time for investigating or remedying a breach of contract are losses but the costs of putting together the claim for those losses are costs.
  • The court may apply discount to the amount claimed for wasted management costs where there is uncertainty as to whether the time incurred was 100% attributable to the breach.

Spam Texting – Is it legal?

We all receive them.  They drive us crazy and we want them to stop but the question in a lot of people’s minds is “Are they allowed to do it?”.  The simple answer is yes, but it depends on who they are and where they have got your mobile phone number from.

Texts asking us whether we have an accident claim or a PPI claim are legitimate forms of direct marketing as permitted by the Privacy and Electronic Communications Regulations (EC Directive) (Amendment) Regulations 2011 or PECR’s for short.  The PECR’s permit the sending of marketing texts as long as they are not unsolicited and also if they are unsolicited (provided certain conditions are met).

NUMBERS-GRAPHIC_Meritor

Unsolicited?

Just because you didn’t to be sent a specific text does not mean the text is unsolicited.  Remember that little box you ticked (or didn’t untick) when you were completing an online loan application?  Well that is often the key to answering this question.  There are a number of different ways the tick box question can be put.  The following are examples :

  1. Where you invite contact from third parties e.g. “I want to receive emails from other companies about XXX.”
  2. Where you have consented to receiving unsolicited texts from third parties e.g. “If you would like us to pass on your contact details to other companies so they can send you details of their offers please tick here ….”

The data collected from these “opt ins” is extremely valuable to those holding it.  They can sell it to third parties who fit the criteria specified in the statement.  The more general the consent statement, the more widely the data can be sold and provided the third party texting you gives you details of how to opt out in the text and disclosed their identity in some way, the texts they send you are not illegal.

Even if you opt out of these statements, the “spam texts” can still be legal if the following conditions are met:

  1. The person sending it has obtained your contact details in the course of the sale or negotiations for the sale of a product of service to you.
  2. The text has to be in respect of similar products and services to those being provided to you.
  3. You have to be given a simple means of refusing further texts – e.g. “text STOP if you do not wish to receive further texts“.

So, for example, if you give your mobile number to a bank in the course of applying for a loan, they can send you direct marketing texts about mortgage or insurance offers they are providing.

But still the buck doesn’t stop there.  Although the PECR’s may be breached by a text marketing company other conditions have to be satisfied before any enforcement action can be  taken.  Enforcement action can include issuing an Enforcement Notice to stop the activity continuing or issuing a Monetary Penalty Notice (or fine).  An example of one of the conditions that must be met in order for an MPN to be issued is that the breach has caused serious damage or distress.  Whilst there may be instances where a text may cause serious distress, how may of us can seriously say these texts are seriously distressing or damaging, rather than just an irritant?

As ever, we’d love to hear your views.

Pistorius vs Pryce – A trial by jury?

Aside

Two recent news stories got me thinking about whether we really need a trial by jury anymore.

The first was the high profile case of Oscar Pistorius who, under the South African legal system, will be tried by judge rather than jury.  The obvious benefits are that the judge has to give written reasons for his findings of fact and in cases which are high profile there is no risk of a lay jury being swayed by media reports.

The other case is also high profile.  The government minister, Chris Huhne, whose wife (Vicky Pryce) took his speeding penalty for him. She was being tried by jury and the judge dismissed the jury after they had been deliberating for 14 hours because they had showed a complete lack of understanding of their basic duties.  For example they asked what her religious convictions were and whether they could reach a decision based on reasons not presented in court and not supported by evidence!

Based on those stories, I think I know which one I would choose – what about you?