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Preventing Imposters - When to Register a Trademark

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Have you ever considered how much your trading name, or brand, is worth to you? If not, think for a moment how your business could be affected if someone were to imitate your livelihood.

How would your business be affected if someone were to start up the same type of business with a very similar name?  A customer searching for you on the web might believe that you were affiliated, or even worse, that you were the same organisation and trade with them instead of you.  Just think of all the lost orders and potential for disruption.

It could get even worse.  The imposter may not provide the same exceptional levels of service to its customers that you do.  It may even deliver such a bad service that they quickly generate widespread bad press and if their name is similar, you will undoubtedly suffer the knock-on effects even though you are completely separate.  Such a situation could see your hard-won reputation evaporate overnight, taking months, if not years, to restore.  As business risks go, this one is very real.

Thankfully you can seek protection by registering your business name as a trademark.  By doing so, you are indicating that you value your brand and that you are prepared to defend it.  Protection can extend to just your business name, or further if you use a particular logo which your customers associate you with.

A registered trademark is no guarantee for avoiding problems, but if one occurs it means that you can quickly take legal action before any real harm is done.  The registration process is surprisingly straightforward and cost effective when compared to the harm that might otherwise be caused.

 

MORE INFORMATION 

If you need advice on intellectual property or any trademark issues, please contact Edward Garston, a Senior Associate in the Company Commercial Department. Call on 01708 229444 or email This email address is being protected from spambots. You need JavaScript enabled to view it.

 
This article was written by Edward Garston, a company commercial solicitor at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of February 2017.
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Kylie vs Kylie - The Power of a Trademark

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When does a name become a trademark, and when should that trademark be disputed? Senior Associate Edward Garston explains.

Reports that the US Patent and Trademark Office has rejected an application by Kylie Jenner to register the name “Kylie” as a trademark will have been warmly received by Kylie Minogue, following a prolonged legal battle about the use of the name.

When Jenner, the reality TV star, applied to trademark the name back in April 2014, it caught the attention of lawyers acting for Minogue, most famous for a string of hits in the 80’s and 90’s.  You should be so lucky seemed to be Minogue’s reaction, and one which has been accepted in the application process.

Jenner has appealed the decision.

The battle brings into focus the often extensive and valuable commercial activities pursued by screen celebrities where name recognition and branding walk hand in hand.  Particularly significant in this case is that Minogue is more often than not referred to by her first name only, which may have been persuasive in the decision.

For businesses building and developing their own brands, a trademark application can be a relatively simple and cost-effective way of protecting an investment.  Although no guarantee that a competitor might try to infringe your rights, it permits swift action to be taken in such an event.

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Removing a director from office - company law

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Edward Garston, company law expert explains how to remove a director and how a director may automatically lose his position.

Relationships in business can break down and companies often need to take a different direction necessitating a change in management, especially if one of the directors is not acting in a way that promotes the success of the company.  

Before considering what route to take, you must always ensure that your reason for removing the director is fair, or you could find yourself facing an employment tribunal claim for wrongful dismissal and a hefty compensation pay out.

How many directors should there be?

A private company must have at least one director and a public company must have at least two at all times. There is no legal maximum number of directors, but all directors must be over 16 years old.

Special considerations where a director is also a shareholder

Where the director being removed is also a shareholder, removal from office will not usually affect their shareholding and voting rights. In small private companies, where a director is often a shareholder, it is advisable to hold negotiations for the purchase of the ex-director’s shares. Alternately, it may be wise to insert a clause into the articles of association that a shareholder who ceases to be a director is deemed to have given the company a transfer notice in respect of his shares.

Removal by ordinary resolution

A director can be removed by an ordinary resolution of a general meeting under section 168 of the Companies Act 2006. The director can be removed before their period of office has expired, regardless of any other agreement to the contrary.

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Autumn 2016 Statement - Commercial updates

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Edward Garston talks about the mixed business reaction to the Autumn Statement amongst the business community.

Although there was much from Chancellor Hammond’s first Autumn statement to offer the business community some festive cheer, there were equally plenty of measures which may not be so warmly received.

A headline grabbing £1.1bn investment into transport networks, including £220m for traffic easing measures on key roads will certainly be welcomed by all those struggling with delays and congestion. Other highlights include an extra £110m funding for rail, and a commitment for new road building in the Oxford to Cambridge corridor. Of particular benefit for the haulage industry, the Chancellor announced a freezing of fuel duty for the seventh consecutive year at a time when a fall in Sterling is already feeding through to higher pump prices.

Meanwhile, the country’s digital infrastructure is set to be enhanced by generous tax allowances on both 5G, the next generation of mobile communications, and a new fibre broadband infrastructure. With business increasingly moving online this move is set to reap rewards across all sectors and keep the UK attractive for overseas investment.

This was an autumn statement which clearly had one eye on the post-Brexit business environment. In view of this, the Chancellor attempted to dampen fears that a significant number of businesses will relocate by underlining the government’s commitment to cut corporation tax from 20% to 17%. It is hoped that keeping business taxation competitive will help the UK be seen as an attractive place for businesses to locate.

But there were also some less business friendly measures. The increase in the national living wage, estimated to be worth £500 to a full time worker, will increase costs for employers. This will have a wide ranging impact, but those sectors most likely to feel the effects range from catering and hospitality, through to the healthcare industry.

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Pinney Talfourd team expands

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We are delighted to welcome two new members to our growing team at Pinney Talfourd; Lee Kirby and Edward Garston.


Edward Garston

Edward joins our Commercial team as a Senior Associate. Edward has considerable corporate and commercial experience and specialises in company acquisitions and disposals, business sales and purchases, commercial agreements, protecting and enforcing intellectual property rights, joint ventures and debt or equity investment arrangements. His experience has been in sectors as diverse as transport and logistics, manufacturing, care services, software and IT businesses and support services.

Having originally worked in the financial markets, Edward’s niche expertise is lending arrangements. His background offers him a unique advantage within corporate finance transactions and he is regularly instructed by banks, financial institutions and private and subordinate lenders.

Edward’s experience and expertise adds further weight and depth to our Commercial team.

Lee Kirby

Lee joins us as our Practice Director, tasked with developing the efficiency and effectiveness of our lawyers and working environment to maximise our abilities to deliver excellent client service and cost effective advice to our clients.

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Your responsibilities as a company director

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Aside from the obvious duties, such as filing reports at Companies House, there are numerous other duties and liabilities all directors should know about.

If you fail to comply with your duties your position on the board may be under threat, as you can be held liable by the company and in some circumstances by minority shareholders. In the most serious of cases directors may be disqualified or face criminal sanctions. 

The duty to avoid conflicts of interest

A director must avoid a situation in which they have a direct or indirect interest that may conflict with the interests of the company. This duty is extremely broad, extending to situations where any information or opportunity available to the director is exploited for their own benefit. The liability of the director who breaches this duty is severe: they will be personally liable to account to the company for any profits or benefit they have received as a result of the breach. The conflict of duty may be breached even in situations where there has been no actual loss caused to the company, it continues after a director has resigned.

The easiest way to avoid liability for a conflict of interest is to obtain advance authorisation from the company for any proposed activity, unless the articles of association prohibit them. Directors who have a personal interest in a proposed transaction can avoid liability by declaring their interest in advance.

There is a defence relating to unforeseeable conflicts, where ‘the situation cannot reasonably be regarded as being likely to give rise to a conflict of interest’.

The duty not to accept benefits from third parties

A director must not accept a benefit from a third party that arises as a result of being, or doing anything as, a director. Such benefits commonly occur as a ‘commission’ paid to the director personally whilst the director is in the process of negotiating a business transaction on the company’s behalf.

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Free Business Legal Review Service

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We are offering a free business legal review service to all Essex businesses to ensure your company is legally sound and resolve issues effectively.

We are delighted to announce that our Commercial Department has been recommended yet again by Legal 500 UK 2016. The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers across the UK. 

We would now like to give you the opportunity to find out why we have been recommended and how your company could benefit from our high quality legal support and advice.

  • Employment contracts and policies up to date?
  • Terms and conditions up to date?
  • Problems with unpaid bills?
  • Potential business disputes?
  • Considering expanding or moving premises?

Act now and take advantage of our free business legal review service. Simply call 01277 211 755 or email This email address is being protected from spambots. You need JavaScript enabled to view it. to arrange a review.

We can visit your premises or you can visit one of our offices to undertake a strings free review of your legal needs and requirements.

Our knowledgeable and efficient lawyers are always looking out for clients best interests and our large team of specialists work together to advise on all commercial matters including:

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Legal 500 UK recommends our commercial work

Legal 500 UK recommends our commercial work
Pinney Talfourd has been ranked by Legal 500 UK as a leading firm in the Corporate Commercial and Commercial Property categories.

We are delighted to announce that our Commercial Department has been recommended yet again by Legal 500 UK 2016 in the following rankings:

Legal 500 UK praised Partner and Head of Department Julien Pritchard, saying his team “gets the job done efficiently, no matter how complicated.’”

 

They highlighted a number of notable cases including:

  • Dismantling of a RITA scheme with complex SDLT issues, application of reliefs and multiple transfers with a value in excess of £30million.
  • Private equity purchase of £11 million commercial property and related landlord and tenant advice.
  • Corporate restructure of a significant and established local business including partnership to company transfer, sale of a commercial property and refinancing.
  • Advising in relation to the acquisition of a service provider including advice in relation to warranties, indemnities and employment related issues. Consideration payable for shares was circa £3million.
  • Advising in relation to the acquisition of an underwriting agency including consultation with the Takeover Panel, deferred payments, earn-out and employment related issues.

The Legal 500 rankings are carefully selected after rigorous assessment and provide a guide to the top legal providers in the UK.

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Small Business, Enterprise and Employment Act 2015

No more annual returns, simplified statements of capital... Looks at what's new in the world of company law for June 2016.
   
The latest provisions from the Small Business, Enterprise and Employment Act 2015 are due to come into effect on 30 June 2016. 

The Act is designed to improve transparency around company ownership and to tackle directors involved in misconduct. At the same time, the Government has taken the opportunity to introduce a number of company filing reforms. This simplifies the current filing requirements and should improve the accuracy and integrity of information held on the public register at Companies House.

The provisions in the Act are coming into effect in stages. Agata Rumbelow, our company commercial expert looks at the latest stage of the Act:

No More Annual Returns

Companies will no longer be required to file an Annual Return (AR01); instead they must file a Confirmation Statement once a year confirming to the Registrar of Companies that the information held at Companies House is still current. Annual Returns will not be accepted for filing after the end of the month.

The Confirmation Statement fee is the same as that currently for the Annual Return (£40 for paper and £13 for electronic filing).

Of course, information that changes in the course of the year (e.g. directors resigning or new directors being appointed) must still be notified to Companies House as they occur, as previously.
 

Statement of Capital Simplified

This is to make it clearer how much (if anything) shareholders owe the Company on unpaid shares, so that anyone using the Register to check a company’s financial health can access the information more readily.
 

Company Registers

Private companies (i.e. not PLC’s) now have the option of just recording information about directors and shareholders at Companies House without a requirement to keep separate registers at their Registered Office.
 

Register of People with Significant Control

From the end of the month, the information that companies are now required to keep on those who hold or control (directly or indirectly) more than 25% of the shares or voting rights in a company, will also have to be provided to Companies House once a year with the Confirmation Statement.

 

Find out more

If you require any further information on different types of business structure or any company and commercial law matter, contact our Company and Commercial team on 01277 246833. 

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at June 2016.
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Have you included a "purpose" in your commercial contract?

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A recent Appeal Court case confirms the importance of a contract having a clear purpose in law.   

Without a purpose, one or other of the parties may not get the benefit they were expecting from the agreement.

But how can the purpose of a contract be unclear? It should be fairly obvious you might think, especially if the parties have specified what it is. Well, not necessarily. The Judge in the leading case on this point stated "A person's purposes are almost always to some extent mixed, and the ordinary principle is that the relevant purpose is the dominant one".

In other words, Judges will make a distinction between

  •  the sole purpose
  •  the dominant purpose
  •  one of several purposes, all of varying importance.

So, it is easy to see how the parties might end up with something they did not intend, and which one or the other of them did not want.

If you have an important commercial contract in the pipeline, are you sure that you will get what you want out of it? If not, why not get it checked out by Pinney Talfourd’s experienced Company/Commercial team.

If you require any further information on different types of business structure or any company and commercial law matter, call 01277 246833. 

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at May 2016.
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Changes to the taxation of dividends

Outlining the changes and advising on how reviewing the structure of your business could help offset some of the pain.   
 
The April budget brought about significant changes to the taxation of dividends which will affect investors, business owners and the self-employed. It is anticipated that married couples who work in family companies might be among the hardest hit and may be thousands of pounds worse off each year.

 

Who is affected by the change?

Anyone who receives more than £5,000 in dividends per year will have been affected. Limited company shareholders will face higher taxes and family-run companies, in which husband and wife both receive dividends, are likely to be significantly affected.

Business owners who pay themselves a small salary and top up their income with larger dividend payments are likely to end up paying more tax under the new rules.

Now is an ideal time to seek advice on how you will be affected and to find out whether making changes to the structure of your organisation or altering the way in which you are paid could reduce your tax bill.

 

The position before 6 April 2016

Before 6 April 2016 dividends were taxed at source at a rate of 10 per cent, which was called a tax credit. Basic rate taxpayers then paid no further tax. Higher-rate taxpayers paid 32.5 per cent tax after the deduction of the tax credit but once the 10 per cent tax credit was deducted the effective rate became 25 per cent. For additional rate taxpayers, the rate was 37.5 per cent, which produced an effective rate of 30.6 per cent after the deduction of the tax credit.

 

6 April 2016 changes

After 6 April 2016 the national 10 per cent tax credit will be abolished. Anyone receiving dividend income above £5,000 will be subject to a higher tax rate.

 2015/2016 tax year2016/2017 tax year
Basic rate tax (20%)0%7.5%
Higher rate tax (40%)25%32.5%
Additional rate tax (45%)30.6%38.1%

 


Why have the changes been brought in?

These changes are designed to tax small companies that pay small salaries and much larger dividends. This is a popular way for business owners to pay themselves since it has the effect of preserving the entitlement to the basic state pension while reducing national insurance costs.

 

Winners and losers

As with most changes in taxation there are winners and losers, but small business owners and the self-employed need to be aware that they could be significantly worse off.

For example, higher earners who receive income from company shares outside an ISA up to £5,000 will pay nothing in tax as of the next financial year, but in 2015/2016 would owe £1,250 in tax. However, if as a higher earner you currently pay yourself more than £21,667 in dividends per year you will be worse off than before.

If you are a basic rate taxpayer who receives dividends of more than £5,001 you will need to complete a self-assessment tax return starting from the tax year 2016/2017.

 

What are your options?

Given the complicated nature of the rules, a review of your business profile could reveal whether a change to your company structure would help you to save money.

Some business owners may consider that share splitting, that is, subdividing shares so that their individual value is diminished, or else distributing income could be advantageous at this time.

Contractors who operate from limited companies may simply adopt a policy of retaining profit within the company until such time as they decide to close it down, since profits remain subject to the same 20 per cent corporation tax as before. Any money drawn from the company from April 2016 will be caught by the new rules, however, and subject to this new taxation.

If you do not currently have a pension or are paying for it out of your net income, now might be the time to set up a limited company pension. Profits can be transferred into a pension, thus avoiding corporation tax as well as dividend taxes to which you would be subject if you were to draw the income personally.

If you are able to bring your spouse into your company, they can be used to absorb unused personal allowances. The level of pay has to be reasonable and they must be seen to do some tangible work but it is important to note that the company will receive tax relief for this cost. If this is within the personal allowance there is of course no income tax payable on this.

A review of your business structure will involve your accountant. Pinney Talfourd will assist in preparing the legal documentation required to put any recommended changes into effect.

If you require any further information on different types of business structure or any company and commercial law matter, call 01277 246833. 


The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at May 2016.
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Frankies Wine Bar is under new ownership

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Frankie’s Wine Bar in Hornchurch is under new management thanks to our commercial team and business is booming already.

Spring is in the air and with more opportunities for socialising on the horizon, this month we take the opportunity to shine the spotlight on Frankie’s Wine Bar, an established wine bar in Hornchurch town centre.

Running a successful wine bar is not easy – most of us have been to one but not everyone knows how to keep their customers happy. Frankie’s new owner Paul Elbourne knew just what to do though, after working for a number of years as a member of staff at the popular local venue.

The previous owner had mentioned that she wanted to retire from the business and so Paul decided to purchase the business lock stock (and barrel!).  The Commercial Department at Pinney Talfourd were delighted to provide legal advice and assistance to Paul to achieve his ambition.

The Legal Work

The commercial property team and company commercial team worked together advising Paul upon a new lease and on the purchase of the business. He had two options; either to assign the lease, or the landlord could surrender the current lease and grant a new one to Paul. We also dealt with the purchase of the new business simultaneously.

This was done without a hitch and Paul’s hard work and perseverance has turned his vision into reality and, following completion of the matter in November last year, he plans to expand the existing business by offering the venue for private hire including lunches, seminars and parties.  He has also launched a website to keep clients up to date with activities; www.frankieswinebar.com

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Legal 500 UK 2015 Results

Pinney Talfourd have been recommended in an outstanding eight categories by the Legal 500 UK 2015.
Pinney Talfourd LLP Solicitors have been recommended yet again when the Legal 500 UK results were published this week. These lists are carefully selected after rigorous assessment and provide a guide to the top providers in each region.



Pinney Talfourd is now recommended for excellence in the South East/ Essex area for:
Partner Stephen Eccles is praised for his ‘ability to grasp the key issues in complex cases’. His team is adept at handling shareholder, partnership, banking and director disqualification cases. The firm is also described as ‘streets ahead in terms of customer service’.

The firm is also described as ‘a reliable and proactive outfit’ that acts for small private owner-managed businesses through to large plc companies. Julien Pritchard is described as ‘an asset to have on side’.

Managing Partner, Philip Cockram said: "We are delighted that our hard work has been recognised yet again in such a prestigious listing. I am very proud of the team here and the fact that individuals have been singled out for their excellent work just goes to show that we are meeting our objectives of a first class service with first class results.”

If you would like to find out more about Legal 500 UK please This email address is being protected from spambots. You need JavaScript enabled to view it. or click on any of the listed categories to find out more about the teams.
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What will 7 May mean for commerce?

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With the election just days away we look at what this means for business: what are the main parties saying they’ll do when it comes to commerce?
 
Many areas of commerce have been tackled, with parties agreeing on the need tackle cyber issues in order to keep the UK at the forefront of the business world. We take a look at their promises below:


Superfast broadband

All the parties are committed to rolling this out across the country, including reducing “not spots” in more rural and remotes parts of the country.


Cyber attacks

All parties have addressed the threat from cyber attacks, with the Conservatives leaning more towards criminal law solutions, while the Labour party favour reporting requirements of those that have suffered an attack.


Privacy and data protection

All parties are conscious of the threats to personal privacy in this internet age, with the Liberal Democrats particularly concerned to strengthen the powers of the Information Commissioner.


Freedom of information

There is a move towards extending this right to a degree. Labour, for example, intends to extend it to public companies that undertake public sector work.


Press and broadcast

The parties all tread carefully round the Leveson recommendations, possibly wary of antagonising the press in the run up to the election, but they all express their admiration of the BBC and their commitment to public service broadcasting.


Creative industries

All parties see the arts and other creative industries as a huge UK national asset and all emphasise the need to foster an environment in which such industries can flourish, including greater protection for intellectual property and continued tax incentives.

It will be interesting to see who comes into power and what they will tackle first.

Please contact us on 01708 229 444 for more information on how this may affect your business or visit the Company and Commercial page to find out more.

This article is only intended to provide a general summary and does not constitute legal advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at May 2015.
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Small Business, Enterprise & Employment Act 2015

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New legislation to take effect this year is the Small Business, Enterprise and Employment Act 2015, which received Royal Assent on 26 March 2015.
 
Measures will come into effect for all companies, large and small, as they are directed at producing greater transparency; so that UK companies cannot, for instance, be used to buy property with no way of finding out who the ultimate owner is.
 
The general feeling is that the current law left the UK vulnerable to being used to shelter the proceeds of crime, especially from abroad.

The Act is to be implemented in stages.

For 2015, the following will come into force

  • Within the next couple of months bearer shares will be abolished, so a shareholder’s name will always have to appear on the Register of Members. All bearer shares will have to be surrendered by the end of 2015. This is only likely to affect the largest companies, such as those quoted on the Stock Exchange.


From October, provisions will come into force that will affect every company, including smaller owner-managed and family companies

  • All directors will have to be natural persons i.e. it will no longer be possible for one company (or other corporation) to be the director of another (without leave of the Registrar of Companies). Existing corporate directors will have a year to come off the register.
  • Measures will be put in place to resolve disputes around the appointment of directors and any change of registered office to prevent corporate hijack (where an outsider takes over a company at Companies House and excludes the true board with a view to stealing its assets).
  • The procedure to strike companies off at Companies House will become easier.
Further provisions will come into effect in 2016, so look out for the next Commercial Bitesize on this Act.


Find out more 

Please contact us on 01708 229 444 for more information on how this may affect your business or visit the Company and Commercial page to find out more.

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2015 - the year of the consumer?

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2014 saw the main focus of commercial law on consumer protection legislation. Terri Corti looks at what this means for you the consumer.

The Consumer Rights Directive

The Consumer Rights Directive came into force on 13 June 2014 and strengthens the existing Distance Selling Regulations. This means that consumers cannot be subject to unwarranted and additional charges e.g. credit card payment surcharges must now not be ‘excessive’.

It also adds additional automatic rights of cancellation for consumer contracts, so that, for instance, ancillary contracts are also automatically cancelled at the same time.


The Consumer Protection from Unfair Trading Regulations

The Government added a new right to sue for aggressive or misleading selling practices from 1 October 2014; this is again a protection limited to consumers.

This give you new rights to redress - specifically if you've been the victim of a misleading action - for example a false statement - or aggressive selling.

These break down into three key areas:

  • A right to undo the contract. You will be able to end the contract as long as you haven't fully consumed goods or digital products, or received a service in full. To get a refund you will also have to exercise your right to unwind the contract not more than 90 days from when you received the goods or the service started.  This is on the provision that any goods supplied to you are made available for collection by the trader. 
  • A right to a discount on the price paid. You will be able to seek a discount in respect of past or future payments due under a contract. The new regulations entitle you to a 25%, 50%, 75% or 100% discount on the payments depending on whether the trader's breach is considered to be minor, significant, serious or very serious.  The level of seriousness of the trader's actions will depend on their behaviour, the impact this has had on you and how long it has been since you signed the contract.
  • An entitlement to seek damages. If you incur a financial loss that you wouldn't have done if it weren't for the trader's actions, you will be able to make a claim for damages.  A claim can also be made if you have suffered alarm, distress or physical inconvenience or discomfort as a result of the trader's actions. Be aware that these regulations give the trader a defence to a claim for damages in certain circumstance, for example if they can demonstrate that their actions were accidental, due to a mistake or factors outside their control. 
Generally, this emphasis on consumer legislation is set to continue in 2015 with the Consumer Rights Bill and the Small Business, Enterprise and Employment Bill both originally scheduled to receive the Royal Assent (and so become law) in this Parliamentary session.

However, the General Election of 2015 is fast approaching, and it may well be that this ‘housekeeping’ legislation goes by the wayside in the face of an incoming Parliament’s new legislative programme.

 

The Company and Commercial team will be providing regular updates and information in the monthly Pinney Talfourd newsletter. If you are not already on our mailing list you can subscribe here.

 
This article was written by Terri Corti, Consultant Solicitor in the Commercial Team at Pinney Talfourd. This article is only intended to provide a general summary and does not constitute legal advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at January 2015.
 
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