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Considerations Arising In The Use of Social Media

Social media has taken the world by storm, in both a business and a personal context. More than a billion people now use Facebook, 220+ million use Twitter, and 225+ million use LinkedIn – and that’s not taking into account the numerous other different types of social media platforms, such as Vine and Instagram. There is no doubt that it has become central to our personal lives, as well as in a business context too – however, it is not without its risks. If you are going to use social media then there are a number of considerations to bear in mind.What are the risks?Have you ever wondered how Facebook’s market capitalisation got to more than $100.6bn? Whilst social networking sites might be free to use in terms of there being no fee, they actually take from us another very valuable commodity - information.In the era of ‘big data’ that we are entering personal information and data on digital habits is like gold dust and this can be gathered by a social networking site and sold on and processed without our knowledge. Not all social networking sites do this, but those that don’t will often use the information they gather for fairly intrusive targeted personal advertising instead.Social media is a very public forum. Even if you say something online and then regret it and delete it, there is no guarantee that it will have disappeared from the web altogether. It is accessible by anyone, from relatives and friends to work colleagues and your boss. It may feel as if you’re simply throwing words out into the black hole of the web, but the reality is that you may be affecting your chances of future employment, risking your current job or offending those close to you without realising it.No matter what kind of organisation you are, if you are using personal social media accounts for promotion of your causes/business then you are not relieved of data protection liability.Data protectionThe Data Protection Act 1998 enshrines the right of individuals to see the information that is being processed about them and introduces obligations on the organisations that are processing it. Individuals can see what is being processed about them by making a subject access request. However, the Act only applies in a business context and there is an exemption where an online forum is used only for domestic purposes. This will not apply where that forum is not used only for domestic purposes – so even one tweet or post that is non-domestic will mean the Act applies.How to reduce the risksBe sensible – this is the most obvious way to minimise the risks from your use of social media. Don’t post inflammatory comments, don’t give more information to social networking sites than is absolutely necessary and think about whether you’d want your parents/children to see a photo before you post it.Use the available controls – most social networking websites have privacy options, however a recent survey found that more than three quarters of us simply don’t use them, despite being concerned about online privacy.Check the privacy policy – this will tell you exactly what will happen to any information that you put into the site, as well as whether or not your data is being sold on anywhere and what will happen to it after it has been sold.What action can you take when something is already online?If something exists online that you really don’t want to be there then the first step is to approach the website administrator and ask for it to be taken down – if the post is a breach of the site’s acceptable use policy this shouldn’t normally be an issue. If this doesn’t work then you can contact the organisation that owns the site directly.Whilst social media seems to have encouraged us previously to take a rather reckless approach to our personal information, we are now starting to see a backlash against privacy intrusion. Although it is almost impossible to prevent your personal data being accessed, exercising caution in using social media sites seems to be a good way to start protecting ourselves.If you would like legal advice about any of these issues, or any other issues relating to terms and conditions of the use of websites or social media networks, please contact San Chima at +44 (0) 207 790 2000 or This email address is being protected from spambots. You need JavaScript enabled to view it.
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Death in Service benefits - Fox v British Airways

The case of Fox v British Airways plc concerned entitlement to death in service benefits where the recipient had died shortly after being dismissed for medical incapacity. Death in service benefits amounting to some £85,000 would have been paid to the deceased’s estate if he had still been employed at the time of his death. A claim for unfair dismissal and disability discrimination was launched by the father of the deceased as an attempt to obtain compensation for the loss of the death in service benefits.The factsMr Fox was employed by British Airways. He was dismissed in 2010 following a six-month absence from work due to an ongoing back condition, and as a result of having exhausted his sick pay entitlement. The reason for the dismissal was given as medical incapacity. Mr Fox’s condition was serious but not fatal. However, five days after he was dismissed he underwent an operation and three weeks later he died from complications.The claimThe claim for compensation for the loss of death in service benefits was brought by Mr Fox’s father, on the basis that if he had not been unfairly dismissed and discriminated against he would still have been employed and so his estate would have been entitled to the death in service benefits.The Employment Tribunal found that because the death in service benefits were not a benefit to Mr Fox but to his dependents, they would not form part of the calculation of his loss if the unfair dismissal and discrimination claims were successful. However, the Employment Appeals Tribunal found the opposite – that the benefits would form part of the calculation of loss.The Court of Appeal decision agreed with the Employment Appeals Tribunal. It was found that although Mr Fox had no claim to the death in service benefits in his own right, it was part of the value of his employment contract and so should be treated as ‘pecuniary loss’ to Mr Fox himself.On the matter of quantifying the loss of the benefit, the Court of Appeal stated that ‘other things being equal’ deciding the amount would depend on the cost of obtaining the equivalent death in service benefits in the market. However, because at this point Mr Fox was now deceased, this was not possible. As a result, if the claim for unfair dismissal and discrimination succeeded, the measure should be that Mr Fox’s dependents be put in the same position that they would have been in had he not been unfairly dismissed i.e. entitled to the £85,000 payout.The issue to note here for employers is that if an employee dies shortly after being dismissed there is the possibility of his or her estate recovering death in service benefits compensation, depending on the circumstances. Liability would need to be established and this can be tricky, particularly as the employee is deceased. However, as Mr Fox’s case shows this is possible and so is something that employers should be aware of.If you would like legal advice about any of these issues, or any other issues relating to death in service benefits or unfair dismissal, please contact San Chima at +44 (0) 207 790 2000 or This email address is being protected from spambots. You need JavaScript enabled to view it.
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The Requirements Of A Settlement Agreement

One of the roles of a solicitor is to ensure that agreements between parties are properly documented, both to provide a record of what has been agreed and to ensure that an agreement is legally binding. Whether or not an agreement has not been recorded in this way, clients will often assume that it has been. This is why solicitors have a duty to ensure that agreements are documented legally as soon as possible after a settlement has been reach - and if this is not done to explain to their clients the nature of the agreement that has been reached. The case of David Frost v Wake Smith & Tofields Solicitors [2013] EWCA Civ 1960 highlights this very effectively.The factsThe case involved two brothers who had been in business together for many years but whose relationships had broken down. As a result, a complex mix of business interests, predominantly property and management, needed to be separated. Both brothers had legal representation and mediation was undertaken during which agreement was reached. One of the brothers’ solicitors was left to record what had been agreed during the mediation and this was later signed by the two brothers.Agreement not legally bindingHowever, the document that had been signed was not a legally binding document, principally because it contained a number of uncertainties and there were elements of the document that had yet to be finished, for example a lack of description of certain properties caught up in the business and an insufficient dealing with the tax implications. In addition, a company that was jointly owned by the two brothers and which had been set up as the legal owner of a number of the properties mentioned in the agreement, was not a party to the agreement. For these reasons – and more – the agreement was not sufficient to meet the demands of the Law of Property (Miscellaneous Provisions) Act 1989 and so was not legally enforceable. Despite this, both brothers left the mediation assuming they had signed a legally binding document. When one brother highlighted some of the incomplete issues at a later date a second mediation was sought.A charge of negligence?Subsequently, the solicitor who was charged with recording the results of the first mediation was charged with negligence for not creating a legally binding agreement after the first mediation. Both the court of first instance and the Court of Appeal agreed that there was no duty on the solicitor to create the legally binding agreement and that it would have been impossible in the circumstances, given the enormously complex matters at play and the fact that at that stage the brothers hadn’t yet reached agreement on certain issues. However, despite this the Court of Appeal made it quite clear that it would be part of a solicitor’s duty to advise a client that a document agreed was not legally enforceable but only an agreement in principle.To Note: where it is possible to reach agreement, this should be documented in legally binding form as soon as possible after the mediation. Where it is not, then clients should always be informed by their solicitors that a legally binding agreement has not been reached and make it clear that further work will be required to reach it.If you would like legal advice about any of these issues, or any other issues relating to settlement agreements, please contact San Chima at +44 (0) 207 790 2000 or This email address is being protected from spambots. You need JavaScript enabled to view it.
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Striking Out Family Proceedings

You are no doubt aware that a number of legal proceedings result in trials or full hearings. However, there are also numerous other ways in which the court can deal with claims and applications. In particular, a claim or application may come to an end when one party’s statement of case is “struck out”. The power to strike out a statement of case in family proceedings has recently been discussed in Vince v Wyatt, focussing on how a delay may affect the court’s approach.Procedure rulesWhen you bring a claim in the civil courts, there are a number of ways with which that claim could be dealt. One obvious route is for the claim to be defended and proceed to trial. However, if the claim is not defended, the claimant may apply for a default judgment. In addition, either party may apply for the other party’s statement of case to be struck out, or for the court to give a summary judgment.The multitude of routes by which the court can deal with a case is set out in the Civil Procedure Rules (“the CPR”). The CPR give the court extensive case management powers in order to achieve the overriding objective of “enabling the court to deal with cases justly and at proportionate cost”.Clearly it is not appropriate for all of the case management options to be translated from civil cases into family proceedings. Therefore, the family courts are governed by the Family Procedure Rules (“the FPR”). However, in 2010, a new power was introduced into the FPR, allowing the court to strike out a statement of case.Power to strike outA statement of case is a written document that discloses the details of the claim or application being made, or a defence to such a claim or application. The power to strike out a statement of case means the power to prevent a party from relying on their statement of case. Under rule 4.4 of the FPR, the court has four heads under which it may strike out a statement of case: (a) if it discloses “no reasonable grounds” for bringing or defending the application, (b) if it is an abuse of the court's process, (c) if the other party has failed to comply with a rule, practice direction or court order and, in some instances, (d) if the parties consent.Vince v WyattIn Vince v Wyatt, the Court of Appeal considered a case in which Ms Wyatt had made a claim for a financial remedy, but Mr Vince had applied to have her statement of case struck out because (a) it disclosed no reasonable grounds and (b) it was an abuse of the court’s process.The facts of the case were exceptional in that the parties had been married in 1981, separated in 1984, and divorced in 1992, but Ms Wyatt had only brought her claim in 2011, some 19 years later. The trigger for the claim appeared to be that, in 1996, Mr Vince had founded a company now valued at £90 million.Although the court initially refused to strike out the statement of case, the Court Appeal agreed to do so, stating that the judge at first instance “had to… exercise his case management powers not just to protect against the greater prejudice but also to husband the resources of the court”.Therefore, the court may seek to use its power to strike out in order to best apportion the courts resources, refusing to incur the cost of long stretches of court time. In particular, the court may be quick to strike out claims in order to prevent a party from being “harassed by claims for financial relief which (a) are issued many years after the divorce and (b) have no real prospect of success”.If you would like advice about bringing or defending a family claim, or about any other area of family law, please contact San Chima at This email address is being protected from spambots. You need JavaScript enabled to view it.
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What is a fixture?

If you are buying or selling a property, especially if it is a commercial property, you would be well advised to pay close attention to a recent case in the High Court concerning the nature of items in a steel plant. The nature of these items - whether they are fixtures or fittings (otherwise known as “chattels”) - affects whether they are sold with the property or not. Therefore, especially in the case of commercial items, the value of the property can be greatly increased if the items on the land are deemed to be fixtures.Fixtures or fittingsAccording to the Law of Property Act 1925, a property is sold inclusive of “all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages”. Some of these items are easy to identify (e.g. gutters), but others are more complex. In particular, the courts have be left to interpret the meaning of “fixtures”, which are sold with the property, as opposed to fittings, which are not.GuidelinesThe courts have built up general guidelines to help distinguish between fixtures and fittings. The main principle is to establish the intention of the person who brought the items onto the land. In order to judge this intention, the court will have regard to (i) the degree of attachment to land, and (ii) the purpose of attachment. Fixtures are those items that are more firmly attached to the property, generally being added in order to enhance the property and intended to remain when the property is sold.Peel Land and Property v TS Sheerness SteelIn a recent case, the High Court gave some further guidelines about what may or may not be considered a fixture. Mr Justice Morgan set out a series of questions that should be addressed: What is the physical extent of the item to be considered? Can the item be physically severed and, if so, with what degree of difficulty? What is the effect of severance of the item on the premises which remain and is that effect remediable? What is the effect of severance of the item on the item itself and is that effect remediable? Does the item when severed retain its essential character and utility?By asking these questions, the judge decided that cranes running on rails were fittings, whereas the rails they ran on were fixtures. One key feature was that the cranes could be lifted intact from the rails, without damage to themselves or the land. Although this would take two to four days at a cost of around £10,000 for each small crane, or up to £25,000 for a large crane, the judge held that “the fact that the item is bulky and awkward and that the exercise of severance is complex” does not necessarily mean that it is a fixture.If you would like legal advice about any of these issues, or any other issues relating to property disputes, please contact San Chima at This email address is being protected from spambots. You need JavaScript enabled to view it.
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