What is the standard of care a patient can expect from a junior hospital doctor?

Michael Shiers January 5, 2018

In any claim for medical negligence against a Junior Doctor, the Court has to consider whether the clinician has breached a duty of care to the patient.  One of the questions is what is the level of care that the clinician owes to the patient?

 

Junior DoctorThe Court of Appeal had to consider this question earlier this year.  The case in question concerned a one-year-old baby.  The baby became unwell as long ago as September 2003.  By 29 September 2003, she was admitted to hospital in a very unwell state and on 1 October 2003 she was transferred to Great Ormond Street Hospital where bacterial meningitis was diagnosed as well as corresponding brain injuries from the illness.  The baby was assessed by Dr. Rushd who was a junior doctor in the Accident & Emergency Department of the Princess Alexandra Hospital.  The baby arrived at the hospital via ambulance at 4.45am and was seen by Dr. Rushd at 5.20am.  Dr. Rushd felt that the child was not seriously unwell and had an upper respiratory tract infection.  The baby’s mother was told that she could go home with her baby.  Unfortunately, during the course of that day her condition worsened and she was back in hospital at 5.53pm via emergency ambulance and was thereafter referred to the specialist paediatric team.  Antibiotics were then administered but by then it was too late to stem off the serious illness and subsequent brain injuries which this child suffered.

One of the criticisms of Dr. Rushd was that she failed to take a proper history from the baby’s mother.  When the case first went to the High Court, the High Court Judge hearing the case felt that Dr. Rushd had displayed the standards of a reasonably competent junior doctor and it was only a more experienced eye, such as that of a consultant or a more senior doctor, such as a Registrar, who would have picked up on the signs which would have led to an onward referral to the paediatric team in the morning.

The Court of Appeal disagreed with the Trial Judge and felt that Dr. Rushd had not acted to a reasonable standard.  The principal reason for the breach in duty was that she failed to take an adequate history which was a basic skill for all hospital doctors, therefore the appeal was allowed.

The Court of Appeal however did take the opportunity of restating the law as to the standard to be expected of hospital doctors.  The law acknowledges that there is a hierarchy of doctors in a hospital but the basic principle is straight-forward.

Whether doctors are performing their normal role or “acting up to a higher role” they are judged by reference to the post which they are fulfilling at the time.  The hospital will be liable if the doctor it puts into a particular position does not possess, and therefore does not exercise, the correct degree of skill for the task in hand.  In other words, the doctor is assumed to be competent for the job which they are doing.  It was therefore irrelevant that Dr Rushd was only aged 25 and relatively inexperienced; the law assumed her to be competent.

Finally, the Court did acknowledge that junior hospital doctors do work long hours under considerable pressures which often involve life and death decisions.  It recognised that doctors are human and even good and conscientious doctors may from time to time fall short of the requisite standard.  However, that did not mean that the Hospital Trust were not legally liable for the human error of one of its doctors.

Michael ShiersMichael Shiers is a Solicitor at Nash & Co Solicitors in Plymouth. He has been a member of the Law Society’s Personal Injury Specialist panel since 1996 and is an accredited Senior Litigator of the Association of Personal Injury Lawyers.

Email: mshiers@nash.co.uk
Telephone: 01752 827025

Changes in Legal Aid for Victims of Domestic Violence

Dave Briggs January 4, 2018

Until recently, victims of domestic abuse have had to literally jump through hoops in order to seek access to Legal Aid. This included having to prove that the abuse took place within the last 5 years.

 

Legal AidThis naturally had the effect of significantly reducing the number of cases taken to court, and even resulted in some victims being put through a harrowing experience of having to face their abuser in court if they decided to press ahead and represent themselves. The fear of having to go through this experience by themselves in a court has helped dissuade many people from applying for protective orders for themselves or their children.

The heavily criticised restrictions over access to Legal Aid were adopted in 2012, but groups campaigning against domestic abuse have been successful in having the law changed, and there is now no requirement to provide evidence the abuse took place in the last 5 years. Further changes will see statements from domestic violence support organisations and housing support officers being accepted as evidence of past abuse, as well as those from social services, law enforcement agencies and medical professionals.

Confirming the new guidelines for the Legal Aid Agency, the justice minister, Dominic Raab, said: “We have listened to victims’ groups and carefully reviewed the criteria for legal aid for victims of domestic abuse in family cases. These changes make sure that vulnerable women and children get legal support so their voice is properly heard in court.”

Nash & Co has a very well respected Family Law team, headed up by Eleanor Barber. The whole team are members of Resolution.

If you need any assistance or advice about domestic violence or other family law matter, please contact us now on 01752 827026 or email ebarber@nash.co.uk

I have been divorced for years, can my former partner still make a claim?

Kirstin Sibley

You have been separated, or even divorced, for years and then, out of the blue, you receive a letter from your former spouse or civil partner seeking a lump sum payment, a share or transfer of your property, or a share of your pension. Many separated or divorced couples ask whether it is possible for such a claim to be brought after so long. The short answer is yes, but not in all cases.

 

Divorced ClaimDuring the course of a marriage or civil partnership couples usually acquire “property”. “Property” can have a wide definition in this context and can include shares, furniture, savings etc. not just a house. When a married couple separate, a decision needs to be made about how that “property” is going to be distributed between them.

It is open to parties to agree the division of “property” and to have this agreement documented in a separation agreement or Consent Order. A separation agreement is a record of what is agreed between the parties. It is not a legally binding document; however, it may prove difficult to renege on the agreement recorded without good cause. A Consent Order is a written document detailing the agreement you reach which is sent to the Court and, if approved by the Judge, becomes legally binding. If the parties cannot reach an agreement, it is possible for either party to make an application to the Court for a financial order where a Jude will make a decision for the parties, known as an Order, as to how the property should be distributed.

If at the time of separation/divorce these matters are not dealt with, and if neither a Consent Order or an Order is made, it is theoretically open to either party to bring a financial claim against their former spouse or civil partner at any time in the future, provided that the applicant party has not remarried. If the party wishing to bring a claim has remarried then any claim will be limited.

There is a lot of guidance from the Courts, as well as statutory law, surrounding spouses and civil partners. It is important to seek legal advice to help guide you through the applicable law and to assist you in resolving the consequent financial issues arising out of your separation.

Should you have a query about a current or historical separation, we have specialists at Nash & Co to answer your enquiry. Please ring on 01752 664444 to arrange an appointment with one of our specialists. Here at Nash, we pride ourselves on providing expert legal advice and using our knowledge to help our clients understand and manage the legal process. All our family solicitors are members of Resolution and we believe in helping our clients overcome the legalities of their separation in a non-confrontational and supportive way.

Kirstin SIbleyKirstin Sibley is a Solicitor in the Family Law team at Nash & Co Solicitors in Plymouth. She is a member of Resolution and deals with all areas of family law. She advises on a wide range of matters including divorce, financial relief, children and cohabitee disputes.

Tel 01752 827038
Email: ksibley@nash.co.uk

 

When is a worker partially responsible for his accident at work?

Michael Shiers December 19, 2017

Contributory NegligenceThe law has long since recognised the principle of “contributory negligence”.

What this means is that a Judge can find that whilst the Defendant in a claim has breached a duty and caused the Claimant personal injury, the Claimant’s personal injury compensation can be reduced by a percentage to reflect the accident victim’s own legal responsibility for causing his injuries.  In theory, a Judge can apportion contributory negligence against a Claimant at anywhere between 1% to 99%.  In practice however, particularly in the field of accidents at work, the finding of contributory negligence is normally less than a third, although there are exceptions.

The Court of Appeal re-examined the law in relation to contributory negligence in the context of an accident at work in the case of Lewis Casson.  Mr Casson worked in a factory and part of his job involved working with moving machinery.  Part of Mr Casson’s job was to knock or brush debris off the side of a machine.  In order to do this, he had to climb a ladder and place his gloved hand near moving rollers which operated a conveyer belt.  Unfortunately, Mr Casson’s gloved hand became rather too close to the moving rollers and his glove and hand were pulled into the machinery causing him personal injury.  The Trial Judge who heard the case found that Mr Casson’s employers were legally responsible for his injuries because they had failed to properly train him. However, during the course of his evidence Mr Casson had conceded that, with the application of hindsight and common sense, there was an obvious risk in what he was doing, i.e. moving his hand so close to the moving machinery.  The Trial Judge therefore found that Mr Casson was 10 percent to blame for his accident and reduced his compensation by 10 percent.  Mr Casson applied to the Court of Appeal.

The Court of Appeal felt the Trial Judge had been overly harsh.  It was clear on the evidence that Mr Casson was simply following what his fellow employees did.  All of them on the same team used the ladder to clean the machinery in the same way in which he did.  The Court of Appeal found that there was no question of the Claimant, Mr Casson, not following orders or having a “reckless disregard for his own safety”.  At most there was a mere error of judgement.  According to previous case law that was not enough to make him negligent, such that he should have a deduction from his damages. The Court of Appeal reminded itself that the reason Mr Casson’s employers have been found in breach of their duty to him in the first place was due to a lack of training.  It was therefore not fair to criticise him for simply following the practice of his fellow employees, even though it was from a common-sense point of view obviously dangerous.  His Appeal was therefore successful and he was awarded 100% of his compensation.

Employment Tribunal Refunds

Karen Bussell November 20, 2017

All eligible applicants can now apply for Employment Tribunal fees refunds to be paid between 29 July 2013 to 26 July 2017.

Applications can be made online or by downloading the relevant form and sending it by email or post to Her Majesty’s Courts and Tribunals Service (HMCTS).

Employment TribunalThere are three different forms: the first for Claimants who paid fees in respect of their own claims, the second for applicants who paid fees in respect of other people’s claims (eg trade unions) and the third for those who were ordered by the Employment Tribunal to pay another party’s fees (such as a lead Claimant).

If HMCTS agrees that a refund is due the amount will be transferred to the applicant’s bank account plus 0.5% interest.

 

Claim by clicking on one of the following links.

 

Death Bed Gifts

David Cornelius November 16, 2017

The case earlier this year of Keeling -v- Keeling has reinforced the Court’s position to try to move away from the rule relating to death bed gifts.

For a death bed gift to be valid three strict requirements need to be met.  They are:

  1. The gift must be made in contemplation of impending death.
  2. The gift must be an outright gift but only take effect when the person dies.  Until that person does die the gift could be cancelled at any time.
  3. There must be a “handing over” of the subject matter of the gift to the person who is receiving it.

The case of Keeling -v- Keeling was between family members following the death of their sister and aunt Ellen Exler.  Ellen died at the age of 91 on 12 November 2012.  She was a widow and had no children.  She also hadn’t prepared a Will so under the laws of intestacy her estate will be divided between her two brothers Frank and Stephen and her two nieces.

Her brother Stephen stated that in May 2012 after Ellen had suffered heart failure she gave him the Title Deeds and keys to her property Hadleigh House.  He also said that she told him that she would rather he had it than anybody else.

This came as somewhat of a surprise to the other beneficiaries and also to various independent witnesses who gave evidence that there had been some hostility between Ellen and her brother Stephen and his wife.

When the case came to High Court the Judge looked at the claim in line with the three requirements set out above.

The Judge ruled that the death bed claim made by Stephen was “hopeless” and in particular took the view that although Ellen had suffered a heart attack in May 2012 she was not hospitalised at that point and in fact survived for a further six months.  Therefore, she did not have a good reason to be in contemplation of an anticipated death and she had plenty of time to perfect the gift before she died 6 months later.  Therefore, the death bed gift failed and the estate including the property was divided between all the family members.

This case seems to be following a line that the Court are moving away from enforcing death bed gifts which avoid all the statutory protections that preparing a Will and taking advice would cover.

However, we know from experience that when people are contemplating their death their view on matters can change and it can also crystallise thoughts that potentially they have had for many years but have not put into place.  That is why at Nash & Co we deliver a flexible and efficient service including visiting clients in hospital and care homes to take advice and producing all the documentation very quickly to ensure that their wishes are fully fulfilled.

Involving a solicitor in these situations will not only help to ensure that the person’s wishes are fulfilled but also reduces the potential for claims against the estate and can also smooth over family situations if the third-party solicitor can explain the reasons behind the decision after discussing it with the individual.

In this case if Stephen’s sister had met with her solicitor and explained that she had intended for him to have the property then the paperwork could have been prepared and Stephen would have received the property and it also would have avoided a lengthy and expensive Court case.

Although none of like to think of our own mortality, careful planning and preparation can save a lot of money and a lot of heartache for those we leave behind.

If you would like more information please contact David Cornelius at Nash & Co

David CorneliusEmail: dcornelius@nash.co.uk
Telephone: 01752 827076
David Cornelius is a Partner, and Leader of the Wills, Trust and Probate Team. He joined Nash in January 2015 after 12 years with a major Regional and National Law firm.

David and his team provide bespoke, clear and simple advice to individuals on how to best provide for themselves and their families in the most practical and tax efficient manner. In particular, he has experience of advising land owners and entrepreneurs of the most inheritance tax-efficient way to structure their affairs.

UBER decision handed down by

Jon Loney November 10, 2017

Uber

STOP PRESS – UBER Decision.

The employment appeal tribunal has just confirmed that UBER drivers are workers and therefore qualify for workers’ rights. They are not genuinely self employed.

Find out more info by clicking this link.

General Data Protection Regulation (GDPR): next steps and how to satisfy GDPR requirements (Part 3)

Krista Doidge November 3, 2017

Are you ready for GDPR? With just over six months to go before the provisions of the GDPR become enforceable, the controller/processor contract and data processing platforms become vitally important. Under the GDPR, it is important that the processor has well-defined clauses in the contract setting out what they will be and importantly what they won’t be responsible for under the GDPR. The GDPR also encourages insurance provisions to be used to adequately cover the risks associated with processing personal data, including risks associated with large scale processing from cyber-attacks or malware hacks.

Are you ready for GDPRUK businesses, whether they are the data processor or the data controller, effectively have until 25 May 2018 to amend all agreements where there is a flow of personal data in order to comply with the more-detailed GDPR requirements. A simple clause stating that each of the parties will comply with their obligations under data protection legislation will no longer satisfy the requirements of data protection laws.

The GDPR does say that the European Commission and the UK Government can, if they want, publish ‘standard clauses’ that deal with all the GDPR requirements and that UK businesses will satisfy the GDPR if they incorporate these clauses within their trading agreements. However, there have been no such publications so far, so those businesses wanting to get ahead will need their own bespoke versions which we can assist in drafting here at Nash & Co.

The Information Commissioners Office has also provided a useful self-assessment toolkit which can be accessed via the link below:

https://ico.org.uk/for-organisations/resources-and-support/data-protection-self-assessment/getting-ready-for-the-gdpr/

Next steps

Firstly, businesses should identify each and every relationship their business has with suppliers, customers, outsourcers, contractors, agents, resellers, distributors, etc, where either the business discloses any personal data to them, or they disclose any personal data to the business.

Secondly, for each of those relationships, identify whether the business is acting as the data controller, or the data processor. It is likely that they will want to agree a slightly different data clause depending on whether they are the data controller or data processor.

Finally, identify whether there is an existing written contract between the two parties. If there is an existing contract, then businesses have until 25 May 2018 to agree an amendment to that contract. In principle amending current agreements shouldn’t be a problem as the other party should also be keen to amend that contract to comply with the GDPR. If businesses do not have existing contracts in place, then they have until 25 May 2018 to enter into a written agreement, ensuring that the agreement includes sufficient data protection clauses.

In the meantime, businesses that are looking to enter into new contracts that involve a flow of personal data which will continue in force (or are likely to continue in force) after May 2018 should ensure that they are not only compatible the current data protection regime but also that they are compliant with the GDPR.

Undoubtedly the steps that business will need to take will vary depending on numerous factors including; the extent to which they are already compliant with Data Protection laws, whether they use other sub-processors to process data for them and whether they export data outside the EEA.

Although there is no ‘one-size-fits-all’ solution to becoming GDPR complaint, below are some suggested next steps for data processors to consider:

  • Review existing contracts with data controllers;
  • Review platforms used in processing activity;
  • Review the use of sub-contractors and their obligations;
  • Review data export arrangements;
  • Review the requirement for a Data Protection Officer;
  • Review data security measures;
  • Review and set up compliance, transparency and accountability procedures;
  • Start identifying the processing activities and start keeping records thereof;
  • Set up internal procedures and protocols and appoint responsible persons for identifying, reviewing and notifying data breaches to the data controller; and
  • Conduct risk assessments to ascertain what form appropriate security measures, insurance, and business disaster recovery plans will take going forwards.


Other blogs in the series

1.    General Data Protection Regulation (GDPR) – Part 1: http://www.nash.co.uk/gdpr-part-1/

  1. General Data Protection Regulation (GDPR) – Part 2: http://www.nash.co.uk/gdpr-part2/

If you are unsure as to how any of information provided within this 3-part blog applies to you and your business or if you need assistance in preparing for the GDPR please do not hesitate to contact us!

General Data Protection Regulation (GDPR): consequences of non-compliance and Data Processors’ potential liability (Part 2)

Krista Doidge October 26, 2017

At present, in the UK data processors are subject to liability for failure to comply with their contractual obligations to their controllers which could give rise to a breach of contract claim by the data controller, but data processors are not open to direct action by the regulator or ‘supervisory authority’ (being the Information Commissioner’s Office or ‘ICO’ in the UK) or data subjects. Historically, the legal onus for compliance has been directly on the data controller.

 

GDPRHowever, under the GDPR data processors will be open to direct enforcement action by both data subjects and regulators and must cooperate with investigations by the regulator. From 25 May 2018 when the GDPR comes into force, both data controllers and data processors may be jointly and severally responsible in respect of any compensation claims brought by data subjects though it is possible that the data processor could avoid this liability if it can show that the damage was not caused by data processor obligations under the GDPR, or that it was not in “any way responsible for the event giving rise to the damage”. Under Article 82.5 of the GDPR, either party can seek to bring a claim against the other to the extent that it is liable for recompense for compensation paid that was in fact due to the others non-compliance. Each party will also still be able to sue the other for breach of the agreement between them.

Enforcement and fines

Data subjects may enforce their rights directly against data processors and will be able claim compensation where they have suffered damage (whether material or less significant) as a result of infringement of processing obligations under the GDPR.

In addition, there are a variety of sanctions available to the regulator including access and audit rights and significant fines of up to 4% of annual global turnover or €20 million (whichever is greater) for certain breaches. This is the maximum fine that can be imposed for the most serious infringements, for example, not having sufficient consent to process data.

There is a tiered approach to fines depending on the severity of the breach. For example, under article 28, a company can be fined 2% of their annual global turnover or up to €10 million for not having their records in order or not notifying the supervisory authority and data subject about a breach when required to do so or not conducting an impact assessment.

For many businesses, the threat of insolvency or even closure as a result of GDPR penalties will soon be very real.

In the interim the ICO continues to clamp down on non-compliant organisations, as demonstrated by the number and value of fines issued for DPA-related offences over the last few years:

Year Number of fines Total
2013 14 £1,520,000
2014 9 £668,500
2015 18 £2,031,250
2016 21 £2,155,500
2017 44 £3,107,500

 

How will fines be calculated under GDPR?

Article 58 of the GDPR provides the regulator with the power to impose administrative fines under Article 83 based on several factors, including:

  • The nature, gravity and duration of the infringement (e.g. how many people were affected and how much damage was suffered by them)
  • Whether the infringement was intentional or negligent
  • Whether the controller or processor took any steps to mitigate the damage
  • Technical and organizational measures that had been implemented by the controller or processor
  • Prior infringements by the controller or processor
  • The degree of cooperation with the regulator
  • The types of personal data involved
  • The way the regulator found out about the infringement

Summary

Both data controllers and data processors must not only ensure that they have adequate contractual agreements in place under GDPR, but should ensure that these contain proper indemnities from each other in respect of any claims they may suffer as a result of the other’s actions, and that they actively monitor and enforce their contracts.

It is likely that there will be litigation between data processors and data controllers trying to apportion blame for claims relating to non-compliance and seeking to recover compensation they may have paid for the other’s fault. Further, as data subjects’ rights will have increased and the extent of loss or compensation required to take an action to court will have been lowered, more court actions are predicted.

Seven months is not long to bring an organisation to a state of compliance with the new law, which is why it is essential to prepare now. Part 3 of my blog will address the next steps that data processors should take to prepare for the GDPR.

Other blogs in the series

General Data Protection Regulation (GDPR) – Part 1: http://www.nash.co.uk/gdpr-part-1/

General Data Protection Regulation (GDPR) – Part 1

Dave Briggs October 19, 2017

In the first of a 3 part series, Krista Doidge explores the direct obligations placed on Data Processors by the new GDPR.

 

From 25 May 2018, the EU General Data Protection Regulation (“GDPR”) will replace all data protection legislation in EU member states (including the UK’s Data Protection Act 1998 (“DPA”) without the need for further national legislation.

GDPR CalendarUnder the GDPR, data controllers may only work with data processors that provide “sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of the GDPR and ensure the protection of the rights of the data subjects.” Therefore, it is imperative that data processors acknowledge GDPR and are actively taking steps to implement the changes.

One of the key changes in the GDPR is that data processors have direct obligations for the first time, resulting in direct enforcement measures (including serious penalties) if they do not comply.

Are you a data controller or a data processor?

Controller – means the person or organisation that decides how the data should be held and processed (e.g. the supplier of goods or services that is collecting customer data to use for sales and marketing).

Processor – means the person or organisation which processes personal data on behalf of the controller (e.g. a sub-contractor that complies reports or develops databases for the supplier).

Your main obligations as a data processor:

If you fall within the scope of the GDPR as a data processor, there are a number of key obligations under the GDPR a summary of which is:

1.    Assurance of compliance to the data controller 

The data processor must provide sufficient guarantees to implement appropriate technical and organisational measures to ensure processing meets the requirement of the GDPR and process personal data only in accordance with the data controller’s instructions.

2.    Restriction on sub-contracting

Data processors are required to obtain prior written consent from the controller to subcontract their activities. They are also required to inform the data controller of any new sub-processors, allowing the controller an opportunity to object. The lead data processor will need to reflect the main contractual responsibility in its sub processing agreements (i.e. to accept that it is responsible for the actions of its sub-processors) and will remain directly liable to the data controller for any failings or breaches by its sub-processors.

3.   Data processing agreements

While before GDPR it has still been the case that data processing agreements between data controllers and data processors have been mandatory, the contracts have often included only very basic obligations. Under the GDPR, the relationship between controller and processor needs to be regulated in greater detail with the GDPR explicitly stating for the first time which obligations need to be covered in a written data processing agreement. The agreement must cover:

  • the duration, nature and purpose of the processing
  • the types of data processed
  • the obligations and rights of the controller

These details must be relevant to the particular data processing agreement and not just a generic statement to cover all scenarios.

The agreement must expressly stipulate that the data processor explicitly agree to:

  • only act on the data controller’s documented instructions, unless EU or local law to which the data processor is subject, determines otherwise;
  • impose confidentiality obligations on all personnel involved in processing the relevant data by ensuring they have committed themselves to confidentiality or are bound by an appropriate statutory duty of confidentiality;
  • ensure the security of the personal data by implementing appropriate technical and organisational measures;
  • comply with stricter sub-processing rules (prior written approval is needed of the controller) and sub-processors must be appointed on the same terms as are set out in the contract between the data controller and the data processor. However, a general blanket approval of sub-processors will remain permissible as long as the controller is allowed to object to the appointment of specific sub-processors;
  • assist the data controller, where possible, with implementing measures to comply with the rights of data subjects;
  • assist the data controller in obtaining approval from the relevant Data Protection Authorities;
  • return or delete all personal data as requested by the controller after the end of services unless obliged to retain the data by law; and
  • make available to the data controller with all information necessary to demonstrate compliance with the GDPR and allow for and contribute to audits, including inspections.

The data processing agreement may be based on standard contractual clauses laid down by the European Commission or national supervisory authorities. There are none published for the UK at present.

4.    Demonstrating compliance and record keeping

A common theme of the GDPR is accountability and compliance. The data processor must maintain a record of all categories of processing activities. This must include details of the data controller and any other processors, the categories of processing carried out, details of any transfers or data exports, and a general description of technical and organisational security measures. There is a carve out to these obligations, where the data processor has fewer than 250 employees provided the processing does not pose a risk to the rights and freedoms of individuals, is not more than occasional and does not include special data (sensitive personal data).

5.    Ensuring appropriate security measures

Processors must have appropriate security measures and what’s appropriate is assessed in terms of a variety of factors including:

  • the sensitivity of the data
  • the risks to individuals associated with any security breach
  • the state of art
  • the cost of implementation
  • the nature of the processing in general

These measures might include pseudonymisation and encryption. Regular testing of the effectiveness of any security measures is also required where appropriate.

6.    Notification of breaches to the data controller

The GDPR now explicitly provides that data processors must notify data breaches to the data controller without “undue delay” after becoming aware of such breach. This aspect may require to be more detailed in the contract to establish precisely what is to be done in the event of a breach bearing in mind the controller’s obligations to the Information Commissioner’s Office (the Supervisory Authority in the UK) in this regard. By doing so, disputes between controllers and processors as to when delay may be “undue” can be avoided.

 7.   Codes of Conduct

The GDPR refers to approved Codes of Conduct as a means both to impose additional obligations on processors and for them to demonstrate compliance. Associations or bodies may submit Codes of Conduct for approval by Member States or at Commission level. Certification or seal programmes may also be used to demonstrate compliance with GDPR requirements. This introduces the potential for different standards across different industries and between Member States. We will have to wait and see how widely used they become and how useful they are.

8.    Data Protection Officer (DPO)

The concept of the mandatory Data Protection Officer (DPO) is new for Ireland and the United Kingdom but already exists in other parts of the EU. Both data controllers and data processors are required to appoint a DPO as follows:

  1. Where they are a public body or authority;
  2. Data processing requires regular monitoring of data subjects on a large scale; or
  3. Where the core activities or the processing involves large amounts of special (sensitive) data or data relating to criminal convictions or offences.

The DPO must have a degree of independence and is the contact point for any data processing compliance issues that arise under the GDPR. A processor may also appoint a DPO even if they don’t fall under one of the three categories above or may be required to do so under Member State specific laws. If the DPO is required or appointed anyway, their contact details must be published and communicated to the Supervisory Authority.

9.   Cross-border data transfers

Like the DPA before it, the GDPR imposes restrictions on the transfer of personal data outside the European Union, to third countries or international organisations, in order to ensure that the level of protection of individuals afforded by the GDPR is not undermined.

The GDPR allows for data transfers to countries whose legal regime is deemed by the European Commission to provide for an “adequate” level of personal data protection. In the absence of an adequacy decision, however, transfers are also allowed outside non-EU states under certain circumstances, such as by use of standard contractual clauses or binding corporate rules (BCRs). Derogations are also permitted under limited additional circumstances.

Keep your eyes peeled next week, when we will be publishing part 2 of Krista’s GDPR guidance. Part 2 will address the consequences of non-compliance with the GDPR and your potential liability as a data processor. If you have any queries or concerns in the meantime do not hesitate to contact us!

 

Krista DoidgeKrista joined the Commercial and Commercial Property Team as a Trainee Chartered Legal Executive in May 2017, working closely with Austin Blackburn and Christopher Stephens. Krista previously worked at a national commercial firm, gaining a broad variety of experience in different areas including commercial and corporate work for large national clients.

Email: kdoidge@nash.co.uk,  Telephone: 01752 827068

Charity Fall Ball a huge success!

Peter Ash September 25, 2017

On Friday 22 September, myself and 3 legal friends from local firms (Laura, Andrew and Carrie below) organised a Charity Fall Ball at the New Continental Hotel in Plymouth in aid of the Plymouth Parent Advocacy Project.

 

Fall BallThis is a fantastic organisation that provides invaluable support to parents with learning needs – particularly when the Local Authority are involved. For more information check out their website below.

http://www.plymouthhighburytrust.org.uk/advocacy/plymouth-parent-advocacy-project/

On a personal note I’ve had several cases which have involved co-working the case with their skilled advocates and I’ve found their support to be absolutely invaluable. Care Proceedings are a very difficult experience for all parents but for parents with learning needs they can seem particularly terrifying and incomprehensible. The PPAP support these parents and help give them a voice.

We are still waiting for a final total but we think we raised over £5,000 for a really worthwhile cause.  There’s already talk about making this an annual event so … watch this space!

Cohabitation Agreements

Eleanor Barber September 15, 2017

Whilst it may not sound overly romantic, unmarried homeowners planning to let a partner move in, either at the time of purchase or at any later stage, should always enter into a professionally drafted cohabitation agreement.

Such an agreement can not only regulate the property’s occupation, but more importantly, will expressly record the intentions of the parties about future ownership. In the absence of such an express agreement, it may be possible for the non legal owner to succesfully claim an interest in the property at a later stage. Claims of this nature are increasing in frequency, and the easiest way to avoid them,  and the ensuing expensive litigation, is through an express cohabitation agreement.

At Nash & Co, our expert family law team can fully advise you and prepare a bespoke cohabitation agreement designed to meet your specific needs and circumstances.

 

Eleanor Barber Cohabitation AgreementsEleanor joined the Nash Family Law Team in December 2015.  She has over 10 years family law expertise including prenuptial agreements, relationship breakdown, cohabited agreements and disputes, financial settlements and all matters relating to children.

Eleanor has been a full member of the Law Society’s Children Panel since 2010 and is also a member of Resolution which encourages cases to be pursued and resolved in a non antagonistic manner.

“Please pass on our thanks to Eleanor for her fabulous representation of Terry, and the fantastic outcome. We all appreciate her hard work and thoroughness. Everyone is delighted.”
-Mrs H

Eleanor can be contacted on 01752 827026 or emailed at ebarber@nash.co.uk

Cyber Security Policies

Julian Summerhayes September 14, 2017

The importance of cyber security means that it must be a board room issue says the Information Commissioner, Elizabeth Denham.

Information Commissioner Cyber SecurityInformation Commissioner Elizabeth Denham has spoken about the need for boards of directors to engage in their cyber security policies at the latest CBI Cyber Security Conference. She told the conference that the Information Commissioner’s Office (ICO) was committed to working with government and the National Cyber Security Centre to provide more certainty, assurance, and guidance to businesses for legislation. Denham believes the incoming Data Protection Act should serve as an opportunity for businesses to focus on data protection and data security.

Denham said reforms to data protection law are long overdue, ‘but now they are here, they will provide the best incentive for companies to get security right’.

She argues: ‘Gone are the days where data security was an IT issue, where data protection was a backroom function.’

Instead, Denham believes boards of directors must understand the new obligations under the impending Bill and the need to invest in safeguards to build and retain customer trust.

The link to the speech can be found here.

Damages for breach of contract

Julian Summerhayes September 12, 2017

The general law principle is that common law damages are compensatory in nature. In a claim for breach of contract, the damages should be such as to place the claimant (the injured party) in the position it would have been in if the contract had been performed.

So far so good.

Breach of ContractThe value – which you’ll often hear described as ‘quantum’ – of any claim for breach of contract should reflect the value of the contractual bargain of which the claimant has been deprived as a result of the defendant’s breach. In a commercial contract, the value of such damages is usually measured by reference to the additional amount of money the claimant would require to achieve the financial value of the expected contractual benefit, e.g. lost profits or cost of reinstatement. There is another basis, namely where a claimant elects to claim damages against the defendant by reference to expenditure incurred in reliance on the defendant’s promise.

The other factor to bear in mind is that most companies — not all, unfortunately! — will seek to rely on their standard terms and conditions. Without going off piste too much, those terms will normally contain a whole host of provisions dealing with the product or service being provided but more especially, particularly in high value contracts, will spell out what happens when things go wrong, including what can/cannot be claim and if any claim for damages is capped in any way. (Normally it’s the defendant who’s more interested in this latter provision, for obvious reasons.)

In the recent and local case of The Royal Devon and Exeter NHS Foundation Trust v ATOS IT Services UK Ltd the High Court was asked to decide a number of preliminary issues in a claim for breach of contract (by the Trust) arising from the supply of IT services.

The Judge undertook a thorough review of the terms and conditions of the contract — which did not escape some judicial criticism for their contradictory and unhelpful drafting — but in essence, she was asked to determine the extent to which the Trust could claim damages for breach of contract for wasted costs notwithstanding an exclusion clause that appeared to negate such a claim. She was also asked to decide if a limitation of liability clause was effective, which would reduce the claim from the c.£7M being claimed.

In both instances, the Judge decided that a claim for damages for breach of contract, amounting to wasted expenditure incurred in reliance on the anticipated performance of the contract, was not a claim for loss of profits and was therefore not excluded under the contract. However, a provision capping the defendant’s liability was valid and enforceable.

Points to note

  1. Every company should have terms of business and wherever possible seek to rely on their terms rather than the party they’re contracting with. An annual review should be the bare minimum and that is particularly the case with the likely impact of BREXIT.
  2. It pays to seek professional advice about any existing terms or new terms that are needed. Whilst it’s tempting to revert to the Web (for inspiration!), you could find yourself on the end of an expensive claim if you rely on someone else’s terms and conditions.
  3. What can or cannot be claimed should be considered carefully. Likewise the enforceability of any exclusion clause. The situation is different in a business to consumer transaction but where it’s business to business, there is greater freedom to limit loss.
  4. The investment in new terms represents a very modest investment when compared to the benefits.
  5. Having a comprehensive set of terms is as important if not more so that the money you invest in your brand. They need not be complex or turgid and any supplier worth their salt would want to know they’re dealing with a company that has well drafted and effective terms — for both sides’ benefit — rather than leaving things to chance.

If you would like more information on this topic, please contact Julian Summerhayes on 01752 827013 or by email jsummerhayes@nash.co.uk

 

Julian Summerhayes, solicitor, is part of the firm’s corporate and commercial team acting for entrepreneurs, owner-managed businesses (OMBs) and investors.

As a former commercial litigation lawyer and now commercial specialist, Julian brings vast experience to the world of business, particularly around start-ups, web or design-led business, the creative sector, digital and manufacturing. His expertise covers the full gamut of trading terms, licence and distribution agreements, franchising, online sales, agency, outsourcing agreements as well preserving and safeguarding of IP rights. He also has a particular interest in sports law working with governing bodies, clubs, elite athletes, brands and agencies with a particular emphasis on the cycling sector (all disciplines).

See Julian’s profile here.

What are Mutual Wills and do I need one?

David Cornelius September 8, 2017

The recent Case of Legg -v- Burton has brought to light the issue of Mutual Wills.

Mutual Wills are usually prepared by couples and when doing so they are making a declaration that neither of them will change that Will without the others permission, which means the Wills cannot be altered after one of them dies.

Mutual WillsIn the Case of Legg -v- Burton a couple prepared Wills in 2000 which basically left their property to each other and, when something happened to both, to their two daughters.

The father died in 2001 and in the following years the mother made more than a dozen further Wills up to her death in 2016.  Unfortunately, during that period her relationship with her daughters had deteriorated and when she passed away her last Will left a larger share of the estate to the grandchildren rather than the daughters.

It was claimed that when the original Wills had been prepared in 2000, the parents had expressly agreed with each other that they were “set in stone” and therefore should still be honoured.

After some deliberation, the Court agreed that the Wills were made mutually and therefore the mother was unable to change her Will after the death of the father.    Therefore the 2000 Wills were honoured with the daughters receiving a larger share of the estate.

One point highlighted by this Case was the high level of evidence required to prove that the Wills were mutual.  In this situation, there were attendance notes from the Solicitor from 2000 and both daughters were present when the Wills were signed.

There are differing views on the fairness of this Judgment.  Some feel that as the parents had agreed that their joint property should pass to their daughters, this should be honoured.  Others felt that although this may be right for the father’s share of the property, is it correct that the mother was also bound to leave her half of the property to her daughters when she decided after her husband had passed away that she did not wish to.

There was also the cost of bringing a Case like this and the potential family issues that can arise.

Rather than relying on the option of Mutual Wills is there another way that the parents could have achieved the same result?

The simple answer is yes.

They could have created in the Wills, a Life Interest Trust for their respective halves of the property.  This would have meant that when the father passed away, the mother could live in the property for the rest of her life or move property, but he would have guaranteed that when she died his half of the property would go to his daughters. The other benefit of the Trust is that it would have still allowed the mother to decide where her half of the property would go.   These trusts work particularly well with second marriages.

Although Mutual Wills may seem like a good idea, they can be difficult and expensive to enforce, the surviving spouse may try to defeat them by giving assets away in their lifetime and can lead to family breakdowns.

Therefore, it is important that clients take professional advice, understand the risks and have the situation tailored to their circumstances.

If you would like more information on this topic, please contact David Cornelius on 01752 827076 or by email dcornelius@nash.co.uk

 

David CorneliusDavid Cornelius is a Partner, and Leader of the Wills, Trust and Probate Team. He joined Nash in January 2015 after 12 years with a major Regional and National Law firm.

David enjoys providing bespoke, clear and simple advice to individuals on how to best provide for themselves and their families in the most practical and tax efficient manner. In particular, he has experience of advising land owners and entrepreneurs of the most inheritance tax-efficient way to structure their affairs.

David has a substantive knowledge of, and can advise on, a wide range of areas including Wills, Trust establishment, Estate Administration and Lasting Powers of Attorney.

See David’s profile here

Tribunal Decision Successfully Argued

Karen Bussell August 24, 2017

It has started.

Employment Judge Wright, sitting in Southampton – part of the Bristol circuit which includes Devon and Cornwall – has ruled that a Claimant could bring a late discrimination claim after she successfully argued that time should be extended because she could not bring the claim due to the fee payable.

This follows the Supreme Court ruling late last month that Employment Tribunal Employment Tribunalfees imposed in July 2013 were unlawful.

The former Tesco employee originally lodged a claim of disability and age discrimination but her application for help with fees was unsuccessful and she was required to pay an issue fee. Her claim was rejected when she failed to do so.

Tesco argued that the tribunal should reject the Claimant’s second application however her barrister maintained that all decisions made under the 2013 Fees Order – including the rejection of her first claim – were unlawful and that to accept a second claim now would satisfy the ‘just and equitable’ requirement for an extension to the time limit and so should be allowed. EJ Wright agreed.

Last week the tribunals president ordered that any applications to reinstate claims must be stayed but in this case the Claimant made a fresh claim.

Parental Responsibility – taking your child abroad

Kirstin Sibley August 18, 2017

The summer holidays are in full swing! The suitcases are packed and the flights are booked. As exciting as family holidays are, they are not always smooth sailing. Many separated parents ask whether they can take their child abroad on holiday. The answer is yes, provided they have permission from everyone who has parental responsibility for that child.

 

Parental Responsibility

Parental responsibility is “all the rights, duties, powers, responsibilities and authority that by law a parent of a child has in relation to the child and his property”. It is worth noting that parental responsibility is not always automatically acquired and if you don’t have parental responsibility your permission to take the child on holiday is not required.

If your former partner has parental responsibility and refuses to give you permission to take the child away on holiday, it is open to you to apply to the Family Court for a Specific Issue Order. A Specific Issue Order will be made when an issue arises in the exercise of parental responsibility. If the Court grants an Order allowing you to take the child away on holiday then you may do so.

If there is a Child Arrangement Order in place stating the child has residence with you (formerly known as a “residence order”) then you may remove the child from the country for a period of up to 4 weeks for the purposes of a holiday without requiring separate consent from the other holders of parental responsibility.

Should you have a query about whether you have parental responsibility or what rights you have, we have specialists at Nash & Co to answer your enquiry. Please ring on 01758 548324 to arrange an appointment with one of our specialists.

On a separate but related note, beware of airports denying passage to adults who have a different surname to the travelling child.

Airports have been known to adopt a very strict approach in requiring proof of the parental relationship to the travelling child, or a letter from the absent parent with permission to travel. If you have a different surname to your child make sure you take proof that you are the parent (e.g. a birth certificate) and/or you have a letter of permission from the absent parent. Parents being turned away from the airport is not unheard of!

Employment Tribunal Claims

Dave Briggs August 11, 2017

The current regime of fees charged for bringing Employment Tribunal claims was ruled unlawful by the Supreme Court on 26 July 2017. The Supreme Court’s reasoning is that the rule of law means people must have access to the courts unless Parliament has clearly said otherwise.

The Employment Tribunal fee scheme which Chris Grayling, then Lord Chancellor, imposed in July 2013 (with charges of up to £1200.00 for an unfair dismissal or discrimination claim) is therefore unlawful and has been since it was introduced. Prior to that there were no fees attached to issuing a claim in the tribunal.

For several days after the judgment, online claims were not possible while the system was updated, however it is up and running again and claims can now be made online free of charge.

The Supreme Court’s decision means that Employment Tribunal fees paid in the past should be repaid and we await the government’s announcement of how the refunds scheme will work. Successful challenger Unison anticipates that some £27 million has been paid in fees to date. It is not as simple as just repaying all the Claimants who have made a claim since July 2013 as often the tribunal ordered the employer to reimburse the fee to the Claimant (and of course there are numerous examples of where the employer failed to pay). It will get really complicated where fees were reflected in an amount paid by an employer to settle the claim.

There then is the question of whether a late claim (outside the strict time limits) brought now would be allowed to go ahead if the reason the Claimant hadn’t proceeded at the time was because the fees payable to the tribunal were too prohibitive – and how the Claimant would evidence that. And if the Employment Tribunal will not allow a late claim, could a Claimant sue the government for having imposed unlawful regulations which stopped him from claiming in time?

There may still be charges for bringing a claim in the Employment Tribunals in the future as the Supreme Court’s ruling is that the 2013 fee regime is unlawful not that any fees will be unlawful. So watch this space – but don’t hold your breath – for new regulations which bring in a more affordable and proportionate system which will not fetter access to justice but, with the headache of working out what that would be, Brexit and the risk of a further challenge to any new fees regime, I doubt that will be any time soon.

Employment Status – The Good Work Report (Taylor Report)

Jon Loney August 8, 2017

The UK has the fifth most efficient labour market in the world.  This is largely because of its flexibility; however, while flexibility may facilitate high rates of employment, it can lead to abuse if employment law does not keep up with changes in working practices.

Good Work ReportIn the UK, the unemployment rate is currently 4.7%, the lowest since 1975 and, at 74.8%, the employment rate is the highest since records began.  This is all good. Yet, if all the flexibility is provided by the workers, is it fair?

The Good Work Report thinks not and, in the main, we agree: there should be a balance in the power between employers and workers for a sustainable healthy economy.

The Good Work Report, published on 11 July 2017, runs to 115 pages and makes numerous recommendations.  However, we limit this blog to the question of employment status.  Currently we have employees, workers and the genuinely self-employed.

Workers have the following rights:

  • Protection against unlawful deduction from wages
  • Right to national minimum wage
  • Paid annual leave
  • Rest breaks
  • Limit on the maximum working week
  • Protection for making a protected disclosure (whistleblowing)
  • Protection from discrimination

In addition to the above rights, employees also have the following rights:

  • Various family friendly rights (including parental, maternity, paternity and shared parental leave, the right to request flexible working and unpaid time off for dependents).
  • Right not to be unfairly dismissed
  • Right to written particulars of employment
  • Right to statutory minimum notice periods
  • Right to a statutory redundancy payment

The genuinely self-employed have none of the above rights (apart from, in some cases, protection from discrimination).

The problem is that, in many cases, it is far from clear whether somebody who is carrying out work is either an employee, a worker or genuinely self-employed.

The Good Work Report recommends that there should continue to be three categories of person carrying out work – employees, dependent contractors (effectively workers) and independent contractors (the genuinely self-employed).  The Good Work Report recommends that the tests should become much clearer so that “if it looks and feels like employment, it should have the status and protection of employment”.

One of the recommendations is that employers should not be able to downgrade what looks like a worker to an independent contractor by having a right of substitution.  As the Report points out, an individual can have almost every aspect of their work controlled by a business, from rates of pay to disciplinary action, and still not be considered a worker if a genuine right to substitution exists.

The recommendation is that the Government should ensure that the absence of a requirement to perform work personally is not an automatic barrier to accessing basic employment rights. They also believe that the principle of control should be of greater importance when determining dependent contractor status.  Control should not be limited as it is now to essentially supervision of day to day activities:  if the reality is that the provider of the work practically controls the person doing it then they would at least be a worker.

We don’t think that changing the label of a worker to that of dependent contractor really adds very much to anything; however, we do believe that there would be great benefits to both employers and people who work if the distinctions between a worker and an employee and a worker and the genuinely self-employed were easily understood.

However, in our view, while it is very simple to say simplify it, it is going to be incredibly difficult to draft legislation that achieves this laudable objective.

Jon Loney is a specialist Employment Solicitor and Managing Partner at Nash & Co in Plymouth

Nash & Co takes Will Aid total past £7,000

Katie Gribbins June 15, 2017

We are delighted to announce that we’ve raised over £1,700 for charity as a result of taking part in the annual Will Aid campaign.

Our team raised the money by giving up their time to write wills for local people in return for a donation to charity.  This is the sixth year we’ve taken part in the scheme and we have raised a fantastic total of £7,448 for charity over that time.

Laura Shaw, a solicitor at the firm, said: “Our firm has once again embraced Will Aid with great enthusiasm.  We are able to provide a high level of service to the local community and clients are always very happy to donate to charity. Making a will means loved ones you leave behind know that you have given your affairs some thought.”

Will Aid campaign director Peter de Vena Franks said: “One in three people die in the UK without making a will, potentially leaving their family and friends nothing but confusion and costly legal battles.

“Will Aid is a wonderful opportunity to not just make a will, but do it with the help of a professional with the added bonus of helping nine charities in the UK at the same time.”

The scheme supports nine of the UK’s best-loved charities – ActionAid, Age UK, British Red Cross, Christian Aid, NSPCC, Save the Children, Sightsavers, SCIAF (Scotland) and Trocaire (N. Ireland).

Will Aid has raised more than £17 million since it launched more than 25 years ago.