JOIN THE NEWS OF THE WORLD EMPLOYEE ACTION GROUP!

We have recently been contacted by a number of very concerned News of the World employees …or should we say ex-NoTW employees.

Rocked by yesterday’s shocking developments, News of the World employees are now not only acutely concerned for their immediate future, but are also distressed about the potential long term career damage that may suffer by being, as they see it, unjustly tainted by the acts of others.

News of the World employees are angered that they are effectively being scape-goated and punished when they have done no wrong.

Since they do not consider themselves to be at all responsible for the circumstances giving rise to the closure of the title, they are concerned to investigate the potential to claim Stigma Damages equivalent to those awarded in the BCCI litigation.

In response we have set up the News Of The World Employee Action Group, to provide co-ordinated and affordable support, advice and guidance for all News of the World employees through what will certainly be a troubling and distressing time for all concerned.  The initiative has been featured in The Lawyer and in The Financial Times.

If you are a News of the World employee, please register your interest now.

For an initial confidential conversation, without charge, please contact either:

Martin Donoghue       mdd@silvermansherliker.co.uk
Nicholas Lakeland     ncjl@silvernamsherliker.co.uk
Victoria Russell           vjr@silvermansherliker.co.uk

Tel: 020 7749 2700
www.silvermansherliker.co.uk

I have had a run in with PC World.

They will not replace a faulty computer.

PC World, I note from my internet research today, has been described by others as ‘Like Hell, but with worse customer service.’

I cannot say whether this is true as I have not yet had the pleasure  of visiting Hell, but my experience of PC World in Charlton has reduced me to an infernal despair.

It appears from my web research today that I am not alone in my despair. In the hope that it may assist others, here is the text of my letter before action I have crafted to the MD of DSG Retail who own PC World, and, I believe, Currys.

Take due note that under the Sale and Supply of Goods to Consumers Regulations 2002 consumers have a RIGHT to require EITHER repair or replacement…so do not be fobbed off with a compulsory repair policy.

PC World is not so PC, after all, in my experience.

So here goes….

——————————————————————————————————————————

Mr Stephen Campbell
Managing Director
DSG Retail – PC World
Maylands Avenue
Hemel Hempstead,
Herefordshire HP2 7TG

Dear Mr Campbell

PC WORLD – CHARLTON STORE- FAULTY TOSHIBA LAP-TOP
SATELLITE C660-130 | PART No: PSC0QE -00500CEN  |  SERIAL No: XA295426K

We represent Mr C J Sherliker, who purchased the above Toshiba lap-top from your store, PC World Charlton, South London in December 2010 as a Christmas present for his son who needed, and still needs, the lap-top in connection with his studies.

It has never worked properly.  It will not turn on. It never reaches the end of it boot up cycle. The machine turns itself off after 30 seconds. The screen remains black.

Our Client has twice requested an in-store credit and twice been refused.  We regret having to trouble you in this matter. You, no doubt, and we, have better things to do, but if you could do what you can to bring some reason to bear in this matter and ensure that PC World complies with its plain statutory obligations, it would be appreciated.

The legal position is simple. Under the Sale of Goods Act 1979, as amended, our client has a right to be compensated if the goods do not conform to description, or are not fit for purpose or are not of satisfactory quality. PC World, as seller, has an obligation to replace or repair the goods within a reasonable time. You have twice failed, on request, to replace the goods and, further, you have failed to repair the goods within a reasonable period time. Further, under section 48A(1) of the Sale and Supply of Goods to Consumers Regulations 2002 our client, dealing as a consumer, has a right to require PC World to repair or replace the goods. Our client now exercises that right. Unless the goods are replaced or a full refund offered within 14 days from the date of this letter our client will have no alternative but to commence proceedings. Sadly, this appears to be the policy of your company. We would observe that it  is not a winning policy.

The facts of the case, should you be interested, are as set out below.

The machine will not turn on. In January 2011, the machine was returned to store and a replacement machine, or a refund, was requested.  In contravention of our client’s rights under  the Sale and Supply of Goods to Consumers Regulations 2002, the Service Desk at PC World, Charlton, declined to do either, and insisted that the machine was picked up by TechGuys to be checked and for the ‘fault’ to be ‘repaired’.

Our client asked to discuss the matter with the manager but was told that it would make no difference because the machine fault would still have to be investigated before the store would consider a refund. Reluctantly, our client agreed to this procedure. In retrospect, our client should not have agreed to this procedure. In doing so, he was acting reasonably and not insisting on his clear statutory right. Our client does now insist on his statutory right.

The machine was picked up from these offices on 25^th January and returned some days later. The machine booted up twice but then reverted to the previous fault. It has not worked since.

On Sunday 12^th June, the machine was again taken back to store. A replacement machine or a store credit was again requested. Again, contrary to our client’s right to an immediate replacement under the Sale and Supply of Goods to Consumers Regulations 2002, the Service Desk at PC World, Charlton, informed our client that, due to the fact that the recurring fault had not been reported within 7 days after the return of the machine from its previous services that it would have to be picked up by TechGuys yet again for investigation and repair. Such conduct on the part of PC World is, quite simply, illegal. Our client is no longer prepared to tolerate such treatment.

Given that the lap-top was manifestly faulty on sale and, further, that TechGuys had been given ample opportunity to remedy the fault but had signally failed to do so, our client understandably sought to insist on a replacement or  at least a full store credit. Contrary to our client’s plain statutory rights under the Sale and Supply of Goods to Consumers Regulations 2002, our client was informed by the instore Service Desk at PC World, Charlton, that ‘only TechGuys could authorise a store credit’ and invited our client to call them from the Service Desk phone. Our client did so and discussed the matter with TechGuys and with PC World Customer Service for over  45 minutes.

PC World Customer Service requested to speak with the Store Manager,  advising that a request for a store credit or replacement based on the fact that the machine was not of reasonably satisfactory quality within the meaning of the Sale of Goods Act 1979 was a matter for the ‘discretion of the Store Manager’. We regret to inform you that the discretion of the Store Manager at PC World does not prevail over the will of Parliament. The Assistant Store Manager came to the phone and discussed the matter with PC World Customer Service. He then went to fetch the Store Manager who introduced himself as Vincent but refused, as a matter of company policy, to provide our client with his surname.

Notwithstanding that the machine was faulty on sale and, further, that TechGuys had failed to remedy the fault, the Store Manager, Vincent, refused either to give a store credit or a refund, contrary to our client’s statutory rights under the Sale and Supply of Goods to Consumers Regulations 2002. Given the delay in reporting the failed repair, he said, he must insist that the machine should again be returned to TechGuys for  further investigation and repair.

We would draw your attention to the fact that this machine was faulty when sold and, very soon after prompt investigation and repair by TechGuys, as agent for PC World, it developed exactly the same fault again. It is quite obviously not of satisfactory quality and unfit for purpose and, at the date of writing, remains so. PC World has been given a reasonable opportunity to repair it and has failed in this endeavour.  In these circumstances, we find it difficult to comprehend why the Store Manager, Vincent, did not immediately agree to replace the machine or provide a store credit but he did not. Instead, he invited our client to pursue his statutory rights by means of court proceedings. The customer service policy of PC World amounts to ‘See you in court’.

We would like to place these facts on record and also the fact that, again, our client has arranged for the lap-top to be picked up on Tuesday 14^th June for ‘repair’ by TechGuys. Our client does so without prejudice to his statutory rights in this matter.

To summarise. Our client bought a Toshiba lap-top that did not work from PC World, Charlton.  Without prejudice to our client’s right to have the machine replaced under the Sale and Supply of Goods to Consumers Regulations 2002, our client provided PC World with an opportunity to ‘repair’ the machine. They failed. Our client has on two previous occasions requested a refund or an in-store credit but has been refused on each occasion.

Our client now seeks a full cash refund of the price paid for this lap-top pursuant to his rights under the Sale and Supply of Goods to Consumers Regulations 2002, and will if necessary pursue formal proceedings to ensure that this is done.  In any such formal proceedings, we will be calling the Service Manager, the Assistant Store Manager and the Store Manager from PC World Charlton to give evidence and will be seeking an award of costs on an indemnity basis.

In those circumstances, we will also be bringing the matter to the attention of the local Trading Standards Office with a full report of the facts of this case and a request that the outright and determined manner in which PC World seeks to avoid its statutory obligations should be investigated forthwith.

We will revert to you in due course as to how we intend to proceed in this matter but, if in the meantime, you could intervene to bring an end to this tiresome charade and provide our client with a Toshiba lap-top that actually boots up and functions as a lap-top, it would save us all a lot of time and money.

CC: The Manager
PC WORLD,
Unit E, Stone Lake Retail Park
Charlton
London SE7 8LU.

—————————————————————————————-

I will let you know what transpires…..

Picture the Scene

Our defendant clients had been involved in long-running proceedings involving complex copyright issues.  There were 10 parties involved in the proceedings some with cross claims against each other.

The legal issues were numerous and complex and the contentions that would have to be determined in court included: Who was the true copyright owner? Had there been joint authorship? Had there been copying? If so, what was the precise extent of the copying? Was similar ‘look and feel’ enough to establish copying? To what extent did the judgment in Navitaire Inc –v- Easyjet (No3) 1725 (Ch) (2005) ECC30 impact on the issues? The question of the personal liability of directors for any infringements by their companies would also have to be adjudicated as well as some very opaque issues of fact.

The parties had been in battle for 5 years and the proceedings on going for approximately 18 months. The proceedings had reached a critical point and it was expected that in 12 to 18 months time there would be a 10 to 15 day trial.

The High Court granted a stay of proceedings to permit the parties to try to resolve their differences by mediation.

The Outcome

At the outset, the Mediator (himself a highly-respected copyright barrister) commented that it was impossible to predict the outcome if the case went to trial as there were at least 64 possible permutations.

It was a long and difficult mediation lasting 15 hours and at which, it can be reliably said, the parties aired their views, and it in the end it produced a resolution that all of the parties could live with.

Had the matter gone to trial, there would probably have been a judgment in favour of some and against others, but it is unlikely that there would have been any clear outright winners.

A little bit of “thinking out of the box” at the mediation meant that the solutions adopted by the parties resulted in a settlement agreement that gave something to everyone. Most importantly from our clients’ point of view, there was no longer a threat of an injunction that might have constrained their business and overall the parties came out of the mediation with honours shared.

The estimated costs to the parties to take the proceedings from the point they were at to trial, £250,000 to £300,000. The cost of the mediation was somewhat less than one-tenth of this figure.

It was a “no brainer” as they say.

The Dispute Resolution Team:

John Abbott:   jca@silvermansherliker.co.uk    
Richard Pearlman: rhp@silvermansherliker.co.uk
James Robertson:  jvar@silvermansherliker.co.uk
Stefan Arestis:  sa@silvermansherliker.co.uk
Asil Albayaty  aa@silvermansherliker.co.uk

This is a non-exhaustive 50 point checklist designed to help you avoid some very common legal pitfalls and maximise the legal security of your business.

1. Make sure that legal ownership assets used in the business are actually owned by the business.
2. Get written copyright assignments from designers, authors, software and web developers and appropriate warranties of originality.
3. Check the terms and conditions of third party suppliers of services to ensure you legally own any deliverables they create.
4. Do not rely on a terminable licence for key business assets; take an assignment or a perpetual royalty-free licence.
5. Always negotiate when taking or granting a licence (term, option to renew, notice period, warranties, conditions etc).
6. Make sure new shareholders assign the assets that they are bringing to the party to the business as a condition of the issue of their shares.
7. Check every name, trademark, slogan and design you use to ensure it does not infringe any third-party rights.
8. Do not use a name, slogan or logo without filing a registered trademark application.
9. Check the patentability of your inventions before disclosure or marketing.
10. Patent your novel inventions if patentable.
11. Register your designs as UK or EU Registered Designs.
12. Insist on non-disclosure agreements as prelude to deal negotiations.
13. When buying, consider milestone payments and a retention.
14. When buying, obtain contractual warranties and indemnities from sellers.
15. When buying, carry out as much due diligence as is possible.
16. When selling, get deferred payments guaranteed or secured.
17. Agree terms of ’soft’ loan capital up-front to avoid sudden repayment demands by investors.
18. Consider weighted voting rights for business founders who go below 50%.
19. Ensure shareholders, employees and consultants agree non-compete obligations.
20. Ensure post-termination non-competes are reasonable and enforceable.
21. Protect customer-base and goodwill by including non-solicitation obligations in employee contracts.
22. Protect investment in staff by including non-poaching obligations in employee contracts.
23. Impose strict confidentiality obligations on people involved in the business.
24. Ensure confidentiality obligations continue after termination of involvement.
25. Draw up an appropriate Shareholders Agreement for multiple shareholders.
26. Consider list of ‘reserved issues’ requiring unanimous shareholder consent to implement.
27. Do business under your own clearly-drafted standard terms and conditions of business.
28. Bring your terms and conditions to the attention of customers before they commit to buy.
29. Make share ownership by partners and staff subject to performance criteria.
30. Provide that employee shares vest over a reasonable period of time.
31. Make employee shares subject to sell-back obligation if they leave for any reason.
32. Provide a procedure for the fair valuation of shares of leaving employee.
33. Encourage employee loyalty by providing for nil value on share buy-back in first 2-3 years.
34. Consider discounted (or nil) value for shareholder employees dismissed for breach or wrongdoing.
35. Control the ability to sell the business by imposing ‘drag-along’ terms on minority shareholders.
36. Consider share purchase assurance to buy back shares of deceased shareholder from the estate.
37. Consider a contractual dispute resolution procedure to avoid dead-lock or formal proceedings.
38. Build business value by obtaining written contracts with customers and clients.
39. Consider minimum term commitments from customers and clients and long notice period.
40. Register under the Data Protection Act if applicable.
41. Negotiate favourable written agreements with all suppliers.
42. In supplier contracts, seek exclusivity, initial minimum term, renewal rights and long notice period.
43. When granting exclusivity ensure minimum performance criteria as a condition of such exclusivity.
44. Consider legal expenses insurance and After the Event Insurance when engaging in legal proceedings.
45. Ensure your business operates within its industry standards and applicable statutory framework.
46. Agree an appropriate Grievance and Disciplinary Procedure and stick to it.
47. Do not terminate any contract of employment without taking legal advice.
48. Never rely on a calculation or valuation carried out by accountants that are being instructed or paid by someone else.
49. Always seek a personal guarantee of payment or performance from principals of an SME business.
50. When dealing with a group of companies, seek guarantee of payment or performance by holding company.

              …..and never give anyone a signed, blank cheque.

 Email to discuss any of this: cjs@silvermansherliker.co.uk

As of Monday, injured feelings will cost UK employers a lot more!

Employees who are unfairly dismissed, particularly in discrimination cases, often get an ‘injury to feelings’ award.

The case establishing the principle was the well-known 2005 case of Vento -v- Chief Constable of West Yorkshire Police.

There has been considerable debate since 2005 as to whether an ‘injury to feeling’ award should be index-linked to allow for inflation. Employment Lawyers have assumed they should be and their views have been confirmed in the Employment Appeal Tribunal case of Da’Bell -v- NSPCC which has just been decided in past 2 days.

The compensation bands for ‘injury to feelings’ award are now :

• lower band:     £ 6,000
• middle band:  £ 18,000
• upper band:    £ 30,000

So employers should be very careful not to upset anyone.

Conversely, if you do get fired…..make sure you are really upset about it!

This developmentshas significant ramifications, not just for those currently fighting tribunal claims but also for those who are advising on compromise agreements where an element of compensation is being ascribed to injury to feelings.

Clearly there is now a lot more to fight for!

As this judgment has been handed down, it has immediate effect despite the transcript not yet being available.