Harper Macleod News & Blogs

Oasis Community Learning –v- Mr B Wolff UKEAT/0364/12/MC

The effect of the Employment Rights Act 1996 is that in a case where an unfairly dismissed employee wishes to be reinstated or re-engaged the tribunal must firstly consider whether to make such an order and should only make a compensatory award when it has made a positive decision against reinstatement or re-engagement. 

Orders for reinstatement and re-engagement are made in only a very small proportion of successful unfair dismissal cases.  For example, the official tribunal statistics from 2011-2012 record that only 5 in 11,200 unfair dismissal claims resulted in reinstatement or re-engagement.  It is unclear whether these figures are so low because few claimants want to be reinstated or re-engaged rather than whether this has not been ordered by the tribunal.  

In March, the Court of Session in Edinburgh confirmed a previous ruling in the case of Healthcare at Home Ltd v The Common Services Agency that the agency for the Scottish Health Service had not breached procurement rules in relation to its award of a contract to BUPA rather than Healthcare at Home Limited.

The contract was for the dispensing and delivery of the breast cancer drug Herceptin and related nursing administration and support.  The CSA's Invitation to Tender had set out the award criteria which the CSA would use in evaluating tenders, as well as the various sub-criteria and the weightings to be given to each.

Glasgow 2014 and Harper Macleod, Legal Advisers to the Commonwealth Games, have announced a series of seminars designed to help businesses engage with the Games following the launch of the Scottish Government's consultation on tighter regulations relating to outdoor trading and advertising.

The consultation on the draft Glasgow Commonwealth Games (Trading and Advertising) (Scotland) Regulations 2013 will run until 7 August 2013.

Fari v Homes for Haringey
October 2012, Central London County Court

A judgement has been issued in the above case, which highlights the perils of exaggerating a claim for personal gain.

In 2010 the Government asked Lord Davies to investigate the barriers facing women in reaching senior positions in business, including at boardroom level. In his report Women on Boards in February 2011, he made a number of recommendations that would envisage businesses voluntarily bringing about a change in culture.

The Government's response was to set a target of 25% for women at board level in FTSE 100 companies by 2015. The latest figures in Lord Davies' recently published update show that some progress is being made. In 2010 women made up 10.5% of FTSE 100 board members, increasing to 12.5% by February 2011 and to 17.3% in April 2013. During the same period the number of all male boards in the FTSE 100 decreased from 21 to 6.

Nicholas Smith v Jonathan Fordyce, Court of Appeal, 10 April 2013

It may be spring but the Court of Appeal has recently issued a judgement dealing with the interesting issue of black ice.

Mr Fordyce was driving a vehicle that skidded on ice and crashed into a wall. No other vehicle was involved. Mr Smith, a passenger in the vehicle, raised an action seeking damages for injury and loss claiming the accident was caused by the negligent driving of Mr Fordyce.

Towards the end of last year the RICS launched a new suite of documents entitled the "RICS Small Business Retail Lease". The intention was to create a simple form of lease for short term lettings without rent review which could be used by SME landlords and tenants for High Street lockup shops and similar property.

The PSG has produced a Scottish version of the RICS Small Business Retail Lease. The lease has been drafted specifically for high street retail property in Scotland and is designed to help address the issues and pressures facing small retail businesses. It is written in plain English and provides flexible terms for a short term lease of up to 5 years, with no rent review. There are also Heads of Terms, Guidance for Advisors and Guidance for Tenants.

Continued investment in the renewable energy sector coupled with increasing pressure upon the government to upgrade outdated power infrastructure means that the UK energy sector continues to "generate" large scale development opportunities for the construction sector and is expected to do so for the foreseeable future.

Whilst this presents a significant opportunity for contractors, it is not without risk. Contractors should be aware of the degree of risk they may assume under bespoke industry contracts and understanding of some of the most common issues is therefore crucial.

The Land Register of Scotland superseded the Sasine Register, introducing a map-based system of registration that carried with it the boon of the Keeper's indemnity. Over 30 years later, the system has once again been found in need of overhaul. 

A real right in heritable property is only created through registration of the deed purporting to transfer ownership. Many vital aspects of the registration process have largely been left to the discretion of the Keeper of the Register of Scotland. For several reasons, (protracted processing times and a dearth of triggers for registration being chief amongst these), uptake of the Land Register of Scotland has been slow, with roughly 75% of land in Scotland yet to be entered onto the register.

The Scottish Government has published three new planning consultation documents:

• National Planning Framework 3 - Main Issues Report
• Draft Scottish Planning Policy
• Environmental Report covering both documents

National Planning Framework 3 (NPF3)

The National Planning Framework (NPF) provides a framework for the spatial development of Scotland. NPF3 will set out the Government's development priorities over the next 20-30 years. Like its two predecessors, it will be the spatial expression of the Government Economic Strategy, informed by the Government's plans and policies in areas such as transport, energy, health and wellbeing, climate change, and land use.

As you will be aware from our previous planning alerts, The Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Amendment Regulations 2013 came into force on 6th April 2013, increasing planning application fees by approximately 20%.

The Scottish Government has published a new Planning Circular 2/2013 (Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Amendment Regulations 2013) in relation to this change, amending Circular 1/2004 and revoking Circular 2/2007.

Harper Macleod LLP, Legal Advisers to the Glasgow 2014 Commonwealth Games, has recorded a 9.5% rise in fee income for the year-ending 31 March 2013.

Yet another year of rapid growth saw income rise from £19.1m to £21m. The firm saw its number of fee earners rise from 166 to 179, up 8% year-on-year, while the number of partners rose from 46 to 53, making it one of Scotland's largest legal partnerships.

Fergus Ewing, Minister for Energy, Enterprise and Tourism, reaffirmed the Scottish Government's commitment to community ownership of renewable energy projects at the Scottish Highland Renewable Energy Conference yesterday (Thursday).

Mr Ewing stated the Government's determination to see 500MW of installed capacity being locally or community owned by 2020 at the event hosted by leading law firm Harper Macleod in Inverness on Thursday,

Stephanie Carr, a Partner in Harper Macleod's Insolvency team, has become one of only 13 Accredited Specialists in Insolvency Law in Scotland.

The Law Society's specialist accreditation scheme, established in 1990, acknowledges exceptional quality and skill of lawyers and is recognised throughout the country.

The Scottish Housing Regulator last month released a report which warns that Registered Social Landlords ("RSLs") must work diligently to protect their financial health.

The Report - 'Analysis of the Finances of Registered Social Landlords 2012' (March 2013) - concludes that the majority of Scottish RSLs are continuing to manage their finances but highlights the key financial risks and challenges facing landlords going forward, particularly lending difficulties, pension liabilities and welfare reform. It advises RSLs that: "There is a vital role for governing bodies to challenge management and to assure themselves that everything possible is being done to manage the risk to financial health".

On 14 March 2013, in Phee v Gordon & Niddry Castle Golf Club the Inner House of the Court of Session reversed the apportionment of damages awarded to an inexperienced golfer, Mr Phee. He lost his left eye, after being struck by a golf ball following a wayward shot by Mr Gordon.

At first instance liability for the agreed damages of £397,034.82 was apportioned as to 70% on Mr Gordon and 30% on the golf club. Mr Gordon had been found negligent for not recognising the risk that he might hit a bad shot and the golf club for failing to erect warning signs.  Both parties appealed denying liability and arguing contributory negligence due to the pursuer's failure to react sufficiently to the shout of 'fore'. Mr Gordon submitted that if each defender were liable the golf club should bear a greater proportion of the liability and the golf club submitted that if they were liable the appeal court should not interfere with the apportionment.

The Chancellor of the Exchequer announced a number of Stamp Taxes and related measures in his Budget on 20th March 2013. Here is a summary of the measures from HMRC's Overview of Tax Legislation and Rates Document with links to any relevant HMRC Tax Information and Impact Notes.

HMRC's Overview of Tax Legislation and Rates Document can be read here:
www.hmrc.gov.uk/budget2013/ootlar-main.pdf

Inner House, Court of Session, 9 April 2013

The Court of Session has today issued a judgement following an appeal to the Inner House on the issue of res judicata.

On 24th March 2009 the Pursuer was involved in a road traffic accident.  It was not disputed that the third party, insured by Sabre Insurance, was at fault for the accident.  Proceedings were raised on the Pursuer's behalf for personal injury at Stirling Sheriff Court.  The case was settled and decree issued on 4 May 2010.

Is your planning permission about to expire? Don't get caught out!

Section 58 of the Town and Country Planning (Scotland) Act 1997 became effective on 3rd August 2009 reducing the standard duration of planning permission from 5 to 3 years. We are aware that the change has been overlooked in some cases where it has been assumed that planning permissions continue to be valid for 5 years. It is likely that if no period is specified in the Decision Notice or Information Notes the default is likely to be 3 years from the date of the Notice. Variations of planning permission may also be affected by this. You should check expiry dates to ensure you do not get caught out by the changes.

If you require any advice then please contact Lee Murphy.

Controversial changes to the Housing Benefit system, dubbed the "Bedroom Tax", have sparked a political furore and generated acres of media coverage. Here, Nadia Sirc considers the key points of the new regulations, who they will affect and what the consequences are likely to be for tenants and landlords.

Introduction

On 1 April 2013 a fundamental change to the Housing Benefit system was introduced across the UK.  The policy has been labelled "Bedroom Tax" though strictly speaking it is not a tax at all, but rather a penalty that will reduce the amount of Housing Benefit that a claimant will receive.