Solicitors in Market Harborough

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We aim to provide practical guidance on useful areas of busness law.  

By sfbsolicitors, Apr 26 2017 08:27AM

Claims of intellectual property infringement are on the increase, a fact which seems somewhat inevitable given the growth in the online business sector. Every business will create some form of intellectual property throughout its existence, whether it is aware of this fact is another matter entirely. The ignorance of others intellectual property rights and the misunderstanding that the term carries leads to confusion and incorrect claims of intellectual property infringement being issued. However, caution should be emphasised for anyone alleging intellectual property infringement, as a claimant can soon find themselves becoming a defendant to an intellectual property claim under the law of unjustified threats.

Unjustified threats are an action which can be brought by prospective defendants to intellectual property claims, however they are not applicable to claims of copyright infringement nor are they valid for the tort of passing off. It is of paramount importance that individuals, businesses and their legal advisors are certain that there has been a clear infringement of the intellectual property right prior to threatening proceedings. If not, then they can quickly find themselves the recipient of a threatening letter stating that they have made an unjustified threat.

At present the law on unjustified threats differs between the different types of intellectual property. This means that the grounds upon which an unjustified threat can be claimed differs for patents, trademarks and design rights. The new Bill which is due to receive royal assent unifies the three intellectual property rights and provides the same test for each under their own parenting legislation. Under the Bill the test for whether a threat amounts to an unjustified threat is whether the communication would be understood by a reasonable person in the position of a recipient to mean that a right exists and that there has been a threat of formal proceedings.

The Bill is also set to bring about changes to the liability of legal advisors in the profession. At present, intellectual property lawyers can be held liable for unjustified threats when acting on behalf of a client. Under the Bill there will now be an exemption when legal advisors are acting on direct instructions from a client and name their client in the correspondence.

The Bill will amend several pieces of existing legislation including the Patents Act 1977, the Trademark Act 1994 and the Registered Designs Act 1949. This new Bill will undoubtedly be a welcome change for both intellectual property law advisors and their clients.

Summerfield Browne Solicitors are specialists in commercial and intellectual property law. We have offices in London, Birmingham, Cambridge, Oxford, Northampton and Market Harborough, Leicester

By sfbsolicitors, Apr 21 2017 11:08AM

A planning application will have to be made by anyone wanting to undertake significant changes to their property. Such changes can include changing the overall use, or expanding the property, for example, by building an extension to the property. The planning application procedure is often straight-forward, however, complications can ensue when applications are rejected.

Some individuals decide to forego the planning application procedure entirely, and begin undertaking works to their property without the required permission. However, this can have significant implications for the individual and they often find themselves being the recipient of an enforcement notice. An enforcement notice is a legal document which is issued by the local planning authority who are a part of the Council and are sometimes referred to as the ‘LPA’. The enforcement notice will order the individual to undo any alterations which have been undertaken on the property without the required consent.

It is the decision of the LPA as to whether planning permission is granted or not. In the first instance, the decision to grant planning permission will be made solely on the development plan of the property.

Planning applications can be denied on several grounds, however, this is not the ultimate end for the individual as such decisions can be appealed against. There are several grounds upon which an appeal can be made if the LPA;

• refuses your application

• grants permission but with conditions you object to

• refuses to change or remove a condition of planning permission that has been granted with conditions

• refuses to approve something reserved under an ‘outline permission’ – planning permission for a general idea, not of a specific plan

• refuses to approve something that you were told to build by your LPA as part of a previous planning permission, ie the previous planning permission was granted ‘with conditions’ and the current development was one of the conditions

• does not make a decision on the application within the deadline and doesn’t get your written consent to change the deadline

• serves you with an enforcement notice and it thinks you have broken planning permission and you don’t agree.

If an individual chooses to appeal a decision, then they will have to do so within 6 months of the date on the decision notice received from the LPA. The individual will have to submit key documents for the appeal to be considered. The appeal process can be time consuming and somewhat overwhelming, our team of planning lawyers are happy to offer their expertise on this area and will guide you through the entire process.

Summerfield Browne Solicitors have offices in London, Birmingham, Northampton, Cambridge, Oxford and Market Harborough, Leicester.

By sfbsolicitors, Apr 5 2017 10:16AM

In civil litigation if a Defendant fails to respond to a claim in time the Claimant can apply for what is known as a default judgment. A default judgment means that the Defendant has failed to file a Defence to the Claim and the court has entered judgment (i.e. a CCJ).

Defendants sometimes have genuine reasons for not replying to the Claim and they include the following:

1. The Defendant was not in the country when the claim was issued and therefore did not have opportunity to respond in time.

2. The Defendant did not receive the papers from the court explaining that a claim had been issued. A common reason cited being ‘problems with the post’.

3. The Defendant’s address as stated on the claim form was not correct which meant the Defendant was not aware a claim had been issued.

A recently cited and more unusual reason why Defendants do not reply to a claim when it is issued includes not believing that the court documents were genuine.

If you find that a CCJ has been issued against you it is important that you act quickly. There is a formal legal process to follow to set aside a CCJ and the mechanism for doing this is set out in the Civil Procedure Rules (CPR) at Part 13. CPR 13.3 states that a court “may set aside or vary a judgment…if….the defendant has a real prospect of successfully defending the claim….or…it appears to the court that there is some other good reason…..why…the judgment should be set aside or varied”.

At Summerfield Browne we have experience in dealing with these applications that often lead to clients going on to successfully defend claims that have been issued against them. Such applications typically require a witness statement setting out the reasons why the Defence was not provided and a short hearing before a Judge to deal with the application.

We find that clients often prefer to have a solicitor review the papers and draft the application. Going to court can be a daunting experience and as well as preparing the application Summerfield Browne can arrange for you to be legal represented at the hearing. Representation at the hearing can often be arranged on a fixed fee which can help minimise legal costs.

Summerfield Browne Solicitors have offices in London, Birmingham, Oxford, Cambridge, Leicester and Northampton.

By sfbsolicitors, Mar 21 2017 11:11AM

In most circumstances the terms of a Will are binding on the beneficiaries who the testator has named in its content. However, it is all too common for the contents of a Will to be disputed, more often than not by disgruntled family members. The testator is granted complete discretion when drafting the Will’s contents. and there have been several infamous cases on the content of Wills which feature more unusual terms. The illusionist Houdini infamously left instruction for his wife in his Will to look out for signs of communication from him and to hold séances each year in his absence.

Although, most Wills do not host such unusual terms, the wide scope of discretion granted to the testator affords them with substantial freedom and with such freedom the possibility of a probate dispute increases. There are several grounds on which the validity of a Will can be challenged, a Will is a legally binding document and under English law must adhere to certain formalities, such formalities can easily be overlooked by those not legally trained and therein lies the potential dispute.

Firstly, a Will must be in writing and signed by the testator in the presence of two witnesses. If the Will is not executed accordingly, then its validity can be challenged on this ground.

Another ground on which a Will may be disputed is if the testator has executed a second Will or has married since writing their first Will. In such circumstances, the original Will would be deemed to be revoked and no longer valid. As per contract law, the battle of the forms rule would apply and the last duly executed Will would be the only valid Will.

Any act of undue influence could potentially give rise to a probate dispute. The undue influence would need to be shown retrospectively and so this can incur problems for those wishing to rely on it. Closely linked with this ground for challenging the validity of a Will is where the testator does not have knowledge or has not approved the Will. The widely available do it yourself Will kits can often be contested on this issue. The Court does however have a presumption that the testator was aware and approved the contents of the Will. If this presumption is to be disputed, then the Court will need to look at the surrounding circumstances of a case i.e. if the Will was drafted by a beneficiary who was to substantially benefit from the Will.

The many grounds on which a Will can be disputed should impose caution on the public and clearly demonstrates the importance of drafting a Will correctly and the implications if it is not.

Summerfield Browne Solicitors have offices in London, Birmingham, Cambridge, Oxford, Northampton and Market Harborough, Leicester.

By sfbsolicitors, Mar 10 2017 09:24AM

A business over the course of its existence will enter into numerous commercial contracts, most commonly these agreements will be for the supply of goods or services. The supply of goods to a business can be of detrimental value to its success, especially in those circumstances when it is acting as a VAR (value added reseller). In such circumstances, if goods are supplied that are incorrect, faulty, or not what the business had intended to purchase, then it may become necessary to assert a breach of contract against the supplier. Often, business owners will incorrectly believe that the commercial contract which they have entered into with the supplier will contain all the terms which the supplier must adhere to. However, commercial law is adaptive and aims to protect the consumer and so the importance of implied terms in commercial contracts should never be overlooked in such situations.

These implied terms can be found under the Sale of Goods Act 1979. Firstly, s.12(1) implies into all contracts for the supply of goods that the seller has the right to sell the goods. Section 12(2) of the legislation provides an implied warranty (i) that the goods are free from any charge or encumbrance not already known to the buyer; and (ii) that the buyer will enjoy quiet possession of the goods. This sub-section of the legislation can be of paramount importance should you later discover after receipt of the goods that the supplier did not have the right to sell the goods in the first instance.

An implied term which is commonly enforced by commercial lawyers is found under section 13(1) which implies a term that the goods sold should comply with their description. The words used must be words of description rather than words merely identifying the goods. This implied term has somewhat of a higher threshold than the others for the reason that the individual must also show reliance on the description. This implied term cannot be relied upon where either the buyer was unaware of the description, or where they have chosen to rely on their own skill or judgement. Nevertheless, it is worth mentioning that even in circumstances where the buyer has examined the goods, this will not automatically infer that the buyer has relied on their own skill or judgement. A case which demonstrates this is that of Beale v Taylor, where a car was advertised as a 1961 Triumph Herald, when in actual fact it was parts of two different cars which had been welded together, and only one of said parts was in fact from the 1961 model. In this case, the advertisement was held to be a sale by description, even though the buyer had inspected the car himself. If your business believes they have relied on a description, then you may wish to assert that there has been a breach of this implied term. An alternative avenue for such a case may also exist by bringing a claim for misrepresentation.

Section 14(2) of the Sale of Goods Act 1979 implies a term into all contracts that if a sale is made through the course of a business, then there is an implied term that the goods are of a satisfactory quality. This test of satisfactory quality is an objective test and further factors will be taken into account in determining this decision including; (i) fitness for the common purposes of the goods; (ii) appearance and finish; (iii) freedom from minor defect; (iv) safety; and (v) durability. This implied term is determined entirely on a case by case basis, and there exists stark contrasts in the decisions of such cases. In Thain v Anniesland Trade Centre (1997) it was held that a six-year old car which was sold for £2,995 was of satisfactory quality even though the gearbox failed two weeks after the sale of the car.

Outlined above are a few of the implied terms which can be relied upon by businesses and individuals alike who enter into agreements for the supply of goods. However, it is important in every case to seek the advice of an experienced commercial solicitor.

Summerfield Browne Solicitors specialise in all aspects of commercial and corporate law. They have offices in London, Birmingham, Cambridge, Oxford, Northampton, and Market Harborough, Leicestershire.

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