Legal Updates

Volkswagen Set Aside Commercial Litigation Funds

Volkswagen has set aside at least £5 billion in an attempt to deal with any legal action that occurs as a result of the emissions scandal. The company could face collective action from shareholders and customers who purchased diesel cars with ‘defeat devices’.

Potential Litigation in European Market

Just under 500,000 cars are expected to be recalled after devices that told the car when it was being tested for emissions and when to reduce said emissions. The defeat devices, which were discovered in the American market has seen shares fall in the company by over 30%, however, it is unclear if the European market had the same devices attached, potentially creating a loophole regarding litigation.

Although the company has set aside funds, Environment Protection Agency (EPA) has warned that the violations since 2008 may run into 8 billion in fines alone.

A first class action against the Volkswagen Group was filed in San Francisco, with experts warning that further claims will likely follow in Germany and the UK. One of the top investors in Volkswagen in Europe said: “If we can with some certainty establish that we, as investors, were misled by the company, and that has affected our returns, then I cannot rule out that we would seek compensation from the company.”

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Launching collective claims in Britain is tougher than in the United States, with claimants being with a common interest to be automatically grouped together even if they did not opt in together. Opt-out class action lawsuits are being introduced on October 1. However, a case against VW in the UK could be painstakingly long.

If you require advice regarding commercial litigationcontact us today by getting in touch with our team of expert solicitors.

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CMS Progress Note Template for Home Health Patients: Comments due by October 13

In January 2015, CMS announced that it was considering developing voluntary clinical templates to help physicians adequately document their encounters with Medicare patients who receive home health services.[1] CMS initially proposed a sample paper template progress note and suggested clinical template elements for an electronic progress note. CMS hosted three Special Open Door Forums to solicit feedback on the proposed templates from physicians, home health agencies, and other interested stakeholders to provide feedback on the proposed templates. 

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Data, data, data

by Riccardo Abeti 

Every day people, enterprises, government organizations try to disentangle themselves from the increasing amounts of data.

Everybody needs everybody’s data, often “beforehand”, “because we could always use them”.

In this field, there are however certain subjects with precise strategies of data raising, created to have a precise thermometer for these phenomena and for its users, as “consumers”, “voters”, “clients” and so on.

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IHT Same Day Additions – where are we now?

Does using multiple trusts save Inheritance Tax (IHT) still, or has IHT planning with multiple trusts been effectively abolished?  When the second Finance Act of 2015 comes into force later on this autumn, we will finally have the answer.
Those with enough spare memory to remember shelved legislation will recall that this time last year, we were enthusiastically discussing the finer details of the proposed Settlement Nil Rate Band, being the creation of the third consultation on changing the IHT taxation of trusts.  This measure provided that the IHT nil rate band was to be shared between all trusts that a settlor had created in their lifetime.  This was rejected in the Autumn Statement 2014, in favour of a targeted anti-avoidance provision against the use of multiple trusts to mitigate IHT periodic charges. 
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Nice-ly done: CIPO now accepting voluntary classification of goods and services

Following our post from July 2015, the Canadian Intellectual Property Office (“CIPO”) is now accepting trade-mark applications filed with goods and services classified using the Nice Classification system.  As part of this process, CIPO has also updated the online Canadian trade-marks database, such that “Nice classification” is now a possible search field.  In addition, the Canadian Goods and Services Manual has been updated to allow users to search for specific terms within all 45 Nice classes, and to cut-and-paste or import text containing a list of goods and services for proposed classification by the database

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photo-1437147921639-ef00e030265aAs of September 28, 2015, the Canadian Trade-marks Office  (“CIPO”) indicated that it accepts trade-mark applications with the goods and services grouped and classed according to the Nice Classification system.  CIPO issued a Practice Notice entitled Nice Classification on September 28, 2015.  Prior to September 28th, the Nice classification system was not used in Canada for filing trade-mark applications.

Canada is in the process of changing its trade-mark law, but those changes are not yet in full force. Therefore, the Practice Notice indicates that the provision of the Nice classes in the application is voluntary at this time. 

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Is Your Health Care Facility Prepared for the Next Pandemic Disease? Failure to Prepare Could Lead to OSHA Liability

shutterstock_ebolaThe Ebola outbreak of October 2014 and the infection of health care workers treating infected patients in the United States  dominated the headlines and frightened the nation.  One year later, training and preparation for the next Ebola is fragmented and some nurses feel unprepared for the next pandemic disease.  The Department of Health and Human Services (HHS) designated a system of 55 hospitals nationwide to manage suspected Ebola cases, but all hospitals have the potential to encounter a patient infected with Ebola or other pandemic disease, just as Texas Health Presbyterian Hospital discovered last year when a patient infected with Ebola presented to its emergency department.  Subsequently, two of the hospital’s nurses contracted Ebola while attempting to provide lifesaving care to this patient.  OSHA did not penalize the hospital because it was one of the first facilities to provide care to a patient infected with the virus.  But it is entirely possible that OSHA could issue citations to hospitals that remain unprepared to safely respond to pandemic diseases now that a year has passed and engineering and administrative controls effective in reducing the spread of infectious diseases are now much more commonly known. 

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Court of Appeal Finds Judicial Bias in Bizarre Child Custody Case

In a recent decision (Clayson-Martin v. Martin, 20015 ONCA 596), the Court of Appeal for Ontario overturned a family trial judge’s decision on the basis of a reasonable apprehension of bias.
The case involved a custody and access dispute over children aged 10 and 7.  At trial, the judge granted the wife sole custody of the children.  The wife appealed that decision because it provided for the children to have generous access to the husband.  The wife submitted that access should have been terminated because the husband tried to kill her.  The case garnered some notoriety in the news because of the alleged attempted murder.  The couple separated as a result of an incident which occurred while they were on vacation in Jamaica.  Each party alleged that at the end of the vacation, while they were on a deserted road from which the husband had wanted to photograph their hotel, the other attacked with a knife. 
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EU Succession Regulation

One of the European Union’s core ideals is the free movement of people and goods.  For many years the different succession laws that exist in the European Union have been a barrier to this idea.    To counteract this the Succession Regulation (EU) No 650/2012) (“Brussels IV”) was adopted on 4 July 2012, although implementation was delayed until 17 August 2015.

The Irish, Danish and UK Governments exercised their right not to opt in to the Brussels IV as there was the possibility there it would introduce a power to claw back lifetime gifts into non-forced heirship jurisdictions, such as the UK.  This power already exists in forced heirship jurisdictions. It was felt that this would introduce uncertainty and complexity in the UK.

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Employee Fired by Text Wins Tribunal Hearing: A Cautionary Tale of Wage Rates

A Chef, who was dismissed via text message after questioning his rate of pay, has been awarded more than £15,000 after an unfair dismissal finding by an employment tribunal.

Christopher Hillis, a former chef at Glasgow restaurant Cail Bruich, asked the owner of the establishment about his pay being less than the national minimum wage on 19th September of last year after being employed for five months. The following day he called in sick and on 22nd September sent a text to his manager enquiring when his next shift was. The reply he received accused him of inventing his illness, was abusive in nature and resulted in dismissal, concluding with: “We don’t want you back”.

The Tribunal found that Mr. Hillis had been unfairly dismissed and awarded him compensation totalling £15,157 for unfair dismissal, breach of contract and claims under national minimum wage regulations. The tribunal found that the underpayment of wage was substantial, with Mr Hillis’ being paid £134 per week less than he should have received. He was also prevented from taking breaks because the kitchen was too busy, meaning his hourly rate was around £4.

This case highlights several issues critical to the employee-employer relationship, including the operation of the national minimum wage.

National Minimum Wage

The National Minimum Wage (NMW) is the minimum pay per hour almost all workers are entitled to by law. All employers must pay an employee wages, which is broadly calculated according to a worker’s age and whether they are carrying out an apprenticeship.

New National Minimum Wage Regulations 2015 came into force on 6 April 2015 and consolidated and replaced the National Minimum Wage Regulations 1999 and a further 27 other statutory instruments. Responsibility for enforcing the NMW falls to HM Revenue and Customs, which has the ability not only to enforce payments of the NMW but also to impose penalties on employers who flaunt the regulations. The repercussions for non-compliance include:

  • The ability to ‘name and shame’ employers who break NMW regulations, leading to public awareness of their business practice and more extensive media publication;
  • Forcing underpaying employers to pay arrears of wages at the current minimum wage rate and the ability to impose financial penalties of up to £20,000;
  • Serious violations may result in employers facing criminal prosecution.

Employers are permitted 28 days to appeal against a Notice of Underpayment. If no appeal is lodged or the appeal is unsuccessful, the Government will consider taking further action, such as publishing their name under the ‘name and shame’ scheme.

As of the 1st October 2015, the NWM rates will rise to:

  • £6.70 for workers 21 and over
  • £5.30 for 18 – 20 year olds
  • £3.87 for 16-17 year olds (those above school leaving age but under 18)
  • £3.30 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.

Perhaps the most important aspect of the regulations’ changes is the introduction of the compulsory National Living Wage, due to be introduced in April 2016. This will set wage rates at £7.20 per hour for working people aged 25 and over.

There are a number of people who are not entitled to the NMW. These include:

  • Self-employed people;
  • Volunteers or voluntary workers;
  • Family members, or people who live in the family home of the employer who undertake household tasks;
  • Company directors.

All other workers, including flex workers, agency workers, commission workers and part-time workers must receive at least the NMW. It is the employer’s responsibility to ensure that each employee is paid appropriately.

An enquiry by employees regarding these rates should be welcomed with reference to these rates and justifications for that employee’s pay depending on their status.


The workplace environment, particularly in small organisations, can often lead to stressful and emotionally driven responses to incidents. Nevertheless, employers have a statutory responsibility to pay their employees appropriately. Emotional and personally motivated decisions taken in an employment context will likely be looked at very unfavourably by Employment Tribunals and may result in a similar outcome to that in the case of Mr. Hillis.

Contact our Employment Lawyers in Glasgow

If you require legal advice regarding any employment issue our team of employment lawyers can help. To discuss any problems you may have, contact our team today using our online contact form or call us on 0141 530 9164.

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