Helping employees keep their cool in a heatwave

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This recent heatwave has raised questions surrounding dress code and hot weather policies, particularly for those employees who are working remotely.

With many businesses adopting a more agile working culture, many employees are still choosing to work from home. However, this does not mean that employers can suddenly forget their health and safety responsibilities. Plus, if people are uncomfortable it’s difficult to maintain a productive workplace.

So should re-assessments be made? Here we explore what businesses can do to ensure their employees stay cool, wherever they’re working.

  1. Safe working temperatures

Employers usually rely on air conditioning and ventilation to regulate temperatures within the workplace.  However, employees working remotely may not have this option, with their only means of keeping cool to open windows. This could lead to the potential disturbance from street noise and neighbours when trying to make telephone or video calls, and therefore can make this option impractical.

Businesses should think about what else they can do to be of practical assistance, for example, by providing workers with electric fans if appropriate.

For those employees that have returned to the workplace, although there is a minimum working temperature of 16 degrees centigrade, currently there is no maximum temperature. This is because in some work environments, such as a bakery or foundry, the temperature will reach higher temperatures far quicker than in an office. Therefore, it’s difficult to set an appropriate limit for all.

  1. Legal obligations

Employers have no legal obligation to ensure suitable working temperatures. However, they do have a duty of care over their employees, so must provide a safe environment where staff are not at risk of falling ill from the heat.

With regards to the usual workplace, installing air conditioning or making sure there is always access to cold water, could form part of this.

To protect workforce wellbeing when remote working is in place, employers should follow a sensible plan; this should involve line managers checking in with staff at least once a day and reminding employees to stay hydrated and take proper breaks.

  1. Dress code

For those employees that have returned to the workplace, in hot weather, businesses should consider relaxing the rules around restrictive clothing, such as ties. Employees are unlikely to produce their best work when all they can think about is how warm they are.

It may even be worth introducing a dress-down policy for days when temperatures are considerably above average, and for meeting commitments encourage a more casual dress code.

Employers with a dress code in place for video calls when working remotely should also consider relaxing it.

  1. Flexible working

On days of extreme temperatures, implementing an early start and late finish workday, like those common in hot countries, would allow workers to rest during the worst of the heat and work when it is cooler.

Your employees’ health and safety should always be a priority.

Failing to consider what adjustments could be made to support employees when the temperature rises is not advisable. If staff become ill from the heat, especially those with health conditions which mean they are more susceptible, employers could find themselves involved in a personal injury dispute.

Ultimately, employee safety should always be an employer’s top priority and they cannot force staff to work if temperature and noise levels prohibit them from doing so.

Certain disabilities, such as COPD and arthritis, also make working in high temperatures particularly difficult, so employers need to consider reasonable adjustments that may need to be made to help them do their jobs safely.

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Mike has a strong reputation for helping employers solve difficult employment problems and make choices based on appropriate risk assessment.

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From guidance on the Coronavirus Job Retention Scheme and support with largescale redundancies, to working from home and policies and other workplace issues, our team of experts are on hand to work with your HR teams to help with any issue, large or small.

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Our community energy report explores consumer attitudes and understanding of low carbon technology and community energy

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Consumers not yet convinced by heat pumps or community energy

  • Less than 1 in 5 (18%) consumers consider a heat pump an affordable option for them

  • Nearly 2 in 5 (37%) consumers would replace a broken gas boiler with a like for like; just 12% would opt for an air or ground source heat pump

  • Top three reasons holding homeowners1 back from retrofitting their homes are: cost (57%), lack of knowledge (28%) and disruption (21%)

  • Just 24% of consumers feel they have a good understanding of what community energy is 

  • 60% unaware of the Heat and Building Strategy £5,000 heat pump installation grant 

  • New research report from Shakespeare Martineau outlines barriers and recommendations for increased low carbon technology adoption 

New research commissioned by law firm Shakespeare Martineau, as part of the firm’s latest white paper Community energy ‘in a box’, shows that almost two-thirds of the population do not feel they confidently understand what a heat pump is, how it works and how they go about getting one. Nor do they understand community energy, with less than a quarter of people (24%) stating they had a good understanding of what it was.

Nearly 2 in 5 (37%) consumers said that if their boiler needed replacing in the next six months they would replace it with a new gas boiler.

Despite the government pushing for heat pumps and electrification, just 12% of consumers would replace their current heating system with a heat pump (6% opted for air source and 6% said ground source heat pump) and more than a third (36%) responded with ‘don’t know’. And 60% were unaware of the government’s Heat and Building Strategy £5,000 heat pump installation grant.

“There are a number of barriers standing in the way of increased adoption of community energy projects, which will make a huge difference to the UK meeting its net zero targets,” said energy partner at Shakespeare Martineau, Sushma Maharaj.

“Consumer buy-in is crucial in order to drive innovation and we also need major landowners like housing associations and planning authorities to make demands on new developments, as well as make it much easier for housebuilders to utilise existing infrastructure in the adoption of community energy.”

The research shows that the top three reasons holding homeowners1 back from retrofitting their homes are: cost (57%), lack of knowledge (28%) and disruption (21%).

The Energy Saving Trust estimates that the cost of an air-to-water heat pump is around £7,000 to £13,000 depending on the size of heat pump, property size, whether it’s a new build or an existing property, and whether you need to change the way heat is distributed around a property.

Providing the above information, we then asked consumers if they thought heat pumps were an affordable option for them; just 18% said yes, while nearly two thirds (62%) said no, and 20% were unsure.

According to the Office for National Statistics, the median household income in the UK was £29,900 in the financial year ending 2020. Respondents closest to this national average household (those with a household income between £25,001 and £35,000) had one of the highest counts of undecided individuals; almost two thirds (65%) were neither likely nor unlikely and just 17% said it was an affordable option.

Sushma added: “With the ‘average’ household having little understanding of community energy and only a minority of this group considering low carbon technology (heat pumps) as an affordable option, more must be done to educate and financially support this group.

“The Chancellor’s announcement to scrap VAT on energy saving technology is a step in the right direction, but will still leave the public – particularly the average ‘able to pay’ household – well out of pocket.

When consumers are already combatting the rising cost of living, if they are required to fork out large sums for new technology there needs to be further incentives, such as additional grants, interest-free loans, reduced council tax or greater influence of EPC rating on the value of their home.
Energy partner, Sushma Maharaj

The research showed that 60% of all people were not aware of the Heat and Building Strategy £5,000 heat pump installation grant. Of those people not aware, more than a third (34%) said that the grant money would make them more likely to purchase a heat pump, indicating an urgent need for improved education.  

The white paper ‘Community energy in a box – how do we get there?’ from law firm Shakespeare Martineau explores public attitudes towards community energy, low carbon technology and retrofitting, as well as brings together experts across energy, academia, law and housing to provide solutions and recommendations for greater adoption of community energy projects by industries that will play a significant role in meeting the government’s net zero targets in 2050. 

When given a description of community energy some consumers changed their mind; 35% of people said they would be likely to consider a community energy project. However, 41% remained indifferent: stating they were neither likely nor unlikely. 

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Sushma is a renewable energy specialist having advised on numerous renewable energy projects and on heat networks. She works with clients as they pioneer clean energy projects and navigate the ever-changing legal and regulatory landscape.

1| Research filtered by homeowners only, provided 1596 respondents 

2| 64% - combined percentage answering ‘no’ or ‘don’t know’ 

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No Quincecare Duty Owed to a Beneficial Owner of Funds – rules The Privy Council

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Royal Bank of Scotland International Ltd (Respondent) v JP SPC 4 and another (Appellants) (Isle of Man) [2022] UKPC 18

Introduction

The term Quincecare duty is certainly on legal and banking minds at the moment, following a raft of recent judgments where claims for breaches of the Quincecare duty have been invoked against banks in a bid to broaden the scope of the duties that a bank owes to its customers and third parties. The Quincecare duty (established in the case of Barclays Bank Plc v Quincecare [1992] 4 All ER 363) prevents a bank from executing a payment instruction where it has reasonable grounds to believe that the instruction is an attempt to misappropriate the account holder's funds. The duty is an aspect of the bank's duty of reasonable care and skill in executing the customer's instructions. It arises by virtue of an implied term of the contract between the bank and the customer or as a co-extensive duty in tort. For further details on the Quincecare Duty see here.

On 12 May 2022, the Privy Council handed down its judgment in the case of Royal Bank of Scotland International v JP SPC4, where it concluded that a bank’s Quincecare duty could not be extended to a duty of care owed in tort to the beneficiary of an account known by the bank to be a trust account. The Privy Council upheld the striking out of the claim in what is a landmark appellate decision under the modern law of negligence to address a bank’s duties in tort in respect of trust accounts holding that:

“on the present state of the authorities, there is nothing in Quincecare itself or in the cases subsequently applying it (including the decision in Philipp v Barclays Bank UK plc [2022] EWCA Civ 318; [2022] Bus LR 353 which was handed down after the hearing in this case) to support the argument that the Quincecare tortious duty of care extends beyond being a duty owed to the bank’s customer which arises as an aspect of the bank’s implied contractual duty of care and co-extensive tortious duty of care.” [44]

What is the background to the case?

JP SPC 4 was a Cayman Island based investment fund (the “Fund”). The fund operated a litigation funding scheme in England and Wales (the “Scheme”). Any loans made under the scheme were to be advanced and repaid through the company, Synergy (Isle of Man) Ltd (“SIOM”) via two separate bank accounts (the “Accounts”) held with Royal Bank of Scotland (the “Bank”). It was alleged that any funds held within the accounts beneficially belonged to the fund and that the bank was aware of this fact.

Between July 2009 and October 2012, the joint directors of SIOM misapplied approximately £77.8 million of the fund's money from the accounts held with the bank (of which at least £60 million was misappropriated following the bank’s classification of the accounts as "high risk"). The fund subsequently commenced proceedings against the bank for breach of an implied duty to take reasonable care to protect the fund from losses caused by the fraudulent misappropriation of funds from the accounts.

The fund alleged that, notwithstanding the fact that the fund was not the bank’s customer, the bank was under a duty to take reasonable care to protect the fund from losses caused by the fraud from the date that the bank knew that the money in the accounts was beneficially owned by the fund. It was also argued that the bank assumed responsibility towards the fund on the assumed facts, by relying on the case of Baden and that there was an incremental development of the law to recognise a duty owed to the fund. The bank applied to strike out the proceedings on the basis that there was no arguable pleaded basis on which the bank could be said to owe a duty of care nor was the assertion of assumption of responsibility made in the pleadings. The bank’s application was dismissed at first instance but allowed on appeal to the Court of Appeal. The fund then appealed to the Privy Council.

The Privy Council’s decision

The Privy Council considered whether in law the bank owed a duty of care to the fund. In reaching its decision, the Privy Council reviewed all recent Quincecare duty authorities and carefully analysed the original judgment of Steyn J in Barclays Bank Plc v Quincecare [1992], which emphasised the limited scope of the Quincecare duty, protecting only a bank’s customer.

The limited scope of the Quincecare duty was further emphasised in the Supreme Court judgment of Singularis Holdings Ltd (In Liquidation) v Daiwa Capital Markets Europe Ltd [2019], which affirmed that a customer’s separate legal identity that relied on its trusted agent was one of the prerequisites for a Quincecare duty to arise.

In line with the preceding case law, the Privy Council could not see any basis for an alleged duty of care to be extended to third parties based on existing authorities or an incremental extension of them.

The implied assumption of responsibility pursuant to Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1993] was firmly rejected by the Privy Council. It stated that former principles of extending the duty of care to third parties if the bank was put on notice that a customer was a fiduciary, and therefore held the money on trust for other beneficiaries, was replaced with a three stage Caparo test for all novel duties of care, and although Baden was not formally overruled, it could no longer stand as good law.

The Privy Council also confirmed that, following Royal Brunei v Tan [1995], it was well-established that banks and other parties who are alleged to be assisting a breach of fiduciary duty are liable only if they are dishonest and not if they are merely negligent. Ultimately, in this case, the Bank did not create the fraud nor were they a party to it. It had no special level of control over the arrangements, it had no contractual relationship or any dealings with the Fund, and thus had not assumed any responsibility to protect the Fund from the fraud.

To conclude

Although the decision is only persuasive in England and Wales, its analysis was solely based on English case law and, therefore, it provides significant clarity and comfort in restating the well-established legal position in relation to banks’ responsibilities to their customers and third parties. This is particularly helpful, after the recent judgment in Phillips involving an authorised push payment fraud perpetrated on the bank’s personal customer, which arguably could be interpreted to have extended the bank’s duties to individuals, albeit this particular issue is yet to be fully decided at trial.

The Privy Council concluded that there was no good reason for incrementally developing the tort of negligence, beyond the well-established Quincecare duty of care.

The legal community waits with baited breath to see what the Supreme Court will decide when it delivers its judgment in Stanford International Bank Ltd (in liquidation) v HSBC Bank PLC, which will be particularly relevant to insolvent companies’ creditors and insolvency practitioners who are pursuing recoveries for insolvent estates.

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Shakespeare Martineau Announces Bristol Expansion

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Midlands-based law firm Shakespeare Martineau is expanding its geographical footprint into Bristol and the Southwest, following an announced merger with law firm GL Law.

The union will see GL Law become part of the Shakespeare Martineau brand, which is part of legal and professional services group Ampa, transferring more than 60 people and taking the group’s turnover to more than £100 million for financial year 2022/23. 

Acting for businesses, people and their families, GL Law will bolster Shakespeare Martineau’s existing expertise, but also further expand its sector specialisms in the creative industries and leisure and hospitality, as well as increase its geographical reach. 

With headquarters in Bristol and a team in London, GL Law has been acting for owner-managed businesses, SMEs, start-ups and some of the most discerning private clients across the Southwest and beyond for more than 300 years and looks to continue and extend this legacy under the Shakespeare Martineau brand.  

Part of legal and professional services group Ampa, Shakespeare Martineau’s partnership with GL Law is in line with the wider group strategy of investing in and bolstering the brands within the group portfolio to truly unlock their potential.   

It follows the recent additions into the group of Sussex firm Mayo Wynne Baxter and cyber security consultancy CSS Assure, both of which maintain their standalone brands within the ‘house of brands’.  

Richard Hill, managing director at GL Law said: “Organic growth has been the driving force behind our business for many years. Our strategy to bring innovation to new service areas and empower our team to work collaboratively has resulted in great success for both our clients and the firm. By joining the exceptional team at Shakespeare Martineau, a firm who truly share our values and ethos, we will be in a much stronger position to accelerate our ambitious growth plans. 

“There is a lot of consolidation in the legal market right now, but no one is offering what Shakespeare Martineau does, together we’re bringing a completely new approach to professional services in the local market. 

“This is an exciting next step in our journey, as we continue to build our services across the Southwest, leveraging the national reach, expertise, and resource offered by Shakespeare Martineau, to grow our support for existing and future clients.” 

There are no redundancies expected as part of the merger, and the brand is proactively looking to recruit talent in the area. Those with an equity share in GL Law will be transferred to equity share at an Ampa level and partners based in Bristol will be responsible for driving the Shakespeare Martineau brand locally.  

Cultural fit is crucial in any new team, or entity joining the group and we saw so many synergies with GL Law’s ways of working and our house of brands.

Our House of Brands strategy is a combination of introducing new standalone brands to the group or combining new teams or entities to our current brands, and in the case of GL Law, their existing legal offering and its market, it made sense for it to join Shakespeare Martineau and expand the national reach of this brand within our group

Sarah Walker-Smith, CEO of Shakespeare Martineau and Ampa

GL Law has started its transition to the group and its equity directors will officially become members of Ampa later in 2022.  

GL Law’s Bristol hub will become Shakespeare Martineau’s 11th office hub location, adding to its current presence in Birmingham, Stratford-upon-Avon, Solihull, Nottingham, Leicester, Lincoln, London, Milton Keynes, Sheffield and Glasgow.  

Ampa, which has pending B Corporation status, also includes uninsured loss recovery experts Corclaim, planning consultancy Marrons Planning and its consumer brand Lime Solicitors.  

The group of brands have been named as one of the top 100 large companies to work for as well as top 25 law firms, top 50 large London businesses and top 75 in East and West Midlands, in the Best Companies list 2022. 

All Ampa brands are recruiting lateral hires and teams, and the group is proactively looking for like-minded businesses to join the group as either standalone brands or bolt-ons to its existing portfolio. 

Find out more about who we are and our house of brands strategy.

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Sarah looks to challenge the norm in the legal sector and wider business world. She is passionate about levelling the playing field, encouraging everyone to bring their authentic selves to work.

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A simple guide to the Quincecare duty in banking claims – What is it and how to bring a claim?

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The Quincecare duty of care was established in the case of Barclays Bank Plc v Quincecare back in 1992, but the authority has only recently received renewed headline attention following the Supreme Court decision in Singularis v Daiwa Capital in 2019. 

What is the Quincecare duty of care? 

The Quincecare duty of care is an implied negative duty imposed on the bank to refrain from making or executing a customer payment when the bank is “put on inquiry” when there are reasonable grounds to believe that instructions may be an attempt to misappropriate funds. 

When a bank is put on inquiry, it has a positive duty to take action and investigate the instruction and any other suspicious/unusual circumstances surrounding the account. 

If the bank fails to make these inquiries then it will be liable for a breach of the Quincecare duty and, as a consequence, this cause of action gives the customer the right to a claim in negligence against the bank. 

There are certain pre-emptive conditions for the Quincecare duty to exist: 

  • The duty is currently only owed to the bank’s business customers, which have a separate legal entity. Consequently, the duty exists to protect a company from the misappropriation of funds by its trusted agent, such as a company director who is normally authorised to withdraw the company’s money; 
  • The existence of fraud is also a precondition for a Quincecare duty claim, and so it provides a helpful and an alternative remedy to recover the misappropriated funds. 

What sort of activity should put a bank on inquiry? 

The objective test is of a reasonable banker and it is fact dependent. A bank will be expected to have sophisticated systems in place to detect the fraud, which might take many forms and can be disguised by some unusual transaction patterns or simply take an obvious form of some questionable payment details.  

These transactional triggers, as well as other obvious signs, should put the bank on inquiry and drive further internal investigations while delaying the payment or ensuring that a receiving bank withholds the payment pending the outcome of these enquiries. 

What about a sole director/owner who controls the company? 

These types of companies are particularly vulnerable to being defrauded by its directors and therefore, banks must monitor these entities and their transactions much more carefully.  

In the particular case of Singularis Holdings Ltd (In Liquidation) v Daiwa Capital Markets Europe Ltd [2019] UKSC, the sole shareholder, chairman and president of the company instructed the bank to transfer $200m to unconnected third parties, which turned out to be unauthorised by the company. The fraud perpetrated by the company director stripped the company of its assets and deprived the creditors of a legitimate claim against the company. 

The Supreme Court decided that despite the fact that the perpetrator of the fraud was the beneficial owner of the company, there was no principle of law to prevent the company from suing a third party, such as a bank for breach of a duty owed to the company. Consequently, the liquidators’ claim succeeded and the company was able to claim its misappropriated funds from Daiwa Capital.  

Can the company’s creditors bring a claim against a bank? 

The short answer is – no. However, administrators and liquidators can bring a claim on behalf of the company, which provides an alternative remedy for the company’s creditors. 

Are there any defences to a Quincecare duty claim? 

Yes, although they are limited. The Quincecare duty can be expressly excluded by a contractual agreement, albeit we are not aware of any successful exclusion defences that have succeeded in the courts so far. 

Alternatively, if it was impossible for a bank to detect the fraud, and the operation of the bank account did not raise any suspicions that would require the bank to perform further investigations/enquiries, that is likely to be a sufficient defence for the bank.   

How realistic is it to expect the banks to be liable when there are millions of banking transactions performed every day?   

It is a matter of public policy and banks are expected to play an active role in reducing and uncovering financial crime. They are expected to have sophisticated systems in place to monitor suspicious transactions and to train their staff to challenge their customers when there are reasonable grounds to do so. If banks fail to investigate suspicious activities, which later lead to the financial losses for the companies, then banks will be held liable for their breach of the duty of care that they owe to their customers. 

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Protecting your back catalogue

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With the first commercial arcade video game being released over 50 years ago, the ageing games industry is sitting on a potential wealth of dormant intellectual property (IP) waiting to be revitalised for new and nostalgic audiences. So, what rights may still exist in older games, and how can their owners prevent others from exploiting their IP without permission?

The industry appears to be riding on a wave of remakes, remasters and sequels of old classics, with Diablo 2’s resurrection and the remasters of Zelda: Link’s Awakening and Final Fantasy VII just a few successful examples. With many games remaining only in players’ memories, their successful revitalisation requires an understanding of the IP attached to them.

Relying on IP in the video games sector can be controversial though. There’s a difficult balance between using it to genuinely protect creations and using it to stifle the market. However, when used appropriately, IP is a vital business asset enabling developers and publishers to prevent competitors from taking advantage of a game’s reputation and popularity.

How might classic games still be protected?

Registered trade marks are a valuable right to hold in the gaming industry. As long as they are renewed and used, they survive indefinitely, protecting anything from titles, names and music, to sounds, images and colours. By registering for specific goods and services, companies can also protect their mark for alternative income streams, including merchandise.

However, if the mark is unused for a period of five years, it becomes susceptible to being revoked from the register. Even if the mark remains on the register after this time, it will likely be challenged should the owner come to enforce it. If a game is shelved, it is possible that registered marks have been allowed to expire, ending protection.

That said, if a trade mark has expired, there may still be unregistered rights in the UK that can be enforced under the common law of ‘passing off’. Passing off protects a business’ goodwill from damage by third parties seeking to benefit themselves commercially, for example through a similar name or packaging design. Protection can extend to names and logos (brands) as well as aspects of a game such as its look and feel or ‘get-up’.

In some circumstances, goodwill can survive longer than an unused trade mark. Unless the owner has deliberately abandoned its goodwill, if consumers still recognise certain elements of a game, then residual goodwill may still exist even if a trade mark has expired or is susceptible to challenge. For historically popular games, such as Metroid, this would be easier to establish than for a more obscure title with a niche fanbase.

There is also an abundance of copyright within video games, protecting not only the software itself, but other aspects including graphics, sounds and character designs. Usually in the UK, the employer owns the copyright, but where works are commissioned, as is common in the gaming industry, the first owner is the commissioned party. As a result, it’s essential to take assignments from suppliers, whether they be artists, composers, animators or programmers.

If a company is relying on a licence, the terms may not extend to the use of the copyrighted work in reissues, remakes or sequels. Should certain aspects be unusable because of this, it means rights have to be reacquired or risk taking away the nostalgia of a game. For example, imagine a new Sonic the Hedgehog game without the iconic ‘ding’ sound when he collects a ring.

It’s important that companies remember this when buying a business for its back catalogue. By carrying out a full IP due diligence check beforehand, purchasers can ensure they are buying all the rights they need to do what they plan to with the title. For those selling their back catalogue, failing to have IP assignment records could affect the value of the business or even prevent a sale, so it’s vital to document IP ownership.

Copyright is therefore a key tool for companies wishing to protect their historic games. However, using it as a weapon, or being perceived to be doing so, can also be reputationally damaging. In one case, a retrogaming entrepreneur who had purchased the rights to the classic ‘Horace’ game, shut down a super-fan of the largely forgotten title on YouTube, which went down poorly with fans and the media.

While trade marks and copyright are the main forms of IP protection seen in the video game industry, registered designs and patents are also relevant. Registered designs are often used for protecting video game hardware, but can also protect the look of a game, such as its gaming user interfaces and heads up displays. Registrations last for 25 years, if they are renewed every five years, and are simple and cheap to obtain. Proving particularly popular with mobile app developers and publishers, it’s possible that registered designs will be used more commonly to protect vintage games in the future.

In the UK, patents for computer programs are specifically excluded from protection, making them difficult to obtain for video games. However, this is not the case in all territories, such as the United States, where software patents are prevalent. Examples include the ‘ping’ system in Apex Legends, and the split-screen dual reality mode in The Medium. Providing 20 years of protection, they are a powerful IP right to hold, so are worth considering early on in development, despite them being less common within the UK gaming industry.

Best IP Practice

For companies that own a back catalogue of games, it isn’t too late to consider registering new trade marks. It’s also important to secure trade mark protection for all relevant goods and services, such as clothing and merchandise, to provide better protection for these alternative income streams.

For existing trade marks, diversifying the way in which they are used reduces the risk of losing them. For example, Nintendo offers back catalogue NES, SNES, and N64 games via Switch Online. By using the marks, the company is not only reducing the risk of a challenge, but also keeping their goodwill alive.

Registered designs can be useful for filling gaps left by other IP rights. Although unfortunately not an option for protecting old games whose designs have been public for a long time, they are an ideal way to protect aspects of new games long into the future.

Cult games now will one day be vintage, so considering IP protection from the outset is essential. Most importantly, healthy IP rights help to ensure other companies don’t swoop in and take advantage of nostalgic audiences.

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Dan is recognised in the 2021 edition of The Legal 500 as a “Key Lawyer” within Shakespeare Martineau’s Tier 2 ranked Intellectual Property team, and in particular for “[standing] out for his varied caseload, which encompasses IP creation, protection and enforcement mandates.

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China Tang Trade Mark Dispute – Key points to Takeaway from the Decision

Intellectual Property | Judgment update

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GNAT and Company Limited and China Tang London Limited -vs- West Lake East Limited and Honglu Gu [2022] EWHC 319 (IPEC)

A judgment has been handed down in relation to a trade mark dispute between the up-market “China Tang” restaurant (located at the 5-star Dorchester Hotel) and a Chinese takeaway, also called “China Tang”, in Barrow-in-Furness.  According to the evidence in the case, the former provides high-end Cantonese meals to celebrities like Kate Moss, Tony Blair and Naomi Campbell, whereas the Defendant’s business provides Chinese fast food “more tailored to the British taste”.

The decision is of interest as it provides food for thought on various trade mark issues including comparison of logo trade marks, assessing reputation, and the ability to rely on honest concurrent use as a defence.

The Trade Mark

The restaurant’s trade mark consists of a logo containing the words CHINA TANG in a stylized font.

After an agreed deletion of self-service restaurants following a non-use challenge, the Trade Mark is registered for the following services in Class 43:

Restaurant services; cocktail lounge services; bars; cafes; catering services; snack bars; mobile catering services; cafeterias; tea houses.

This does not therefore include takeaways but does include other types of food and restaurant related services.

A likelihood of confusion with the Defendant?

In order for there to be infringement under section 10(2) of the Trade Marks Act 1994, there must be a likelihood of confusion between the Trade Mark and the Defendant’s own “China Tang” sign.

When comparing the services covered by the trade mark and the use made by the Defendant, the Judge concluded that while there was not an exact overlap, takeaway services are very similar to those in the Trade Mark’s specification, particularly “restaurant services”.

When comparing the marks, the Judge found that the dominant and distinctive element of the Trade Mark consists of the words “China Tang”, despite the stylization of the words and the border design within the logo, and that this wording element is identical aurally to the Defendant’s sign, and is visually similar.

As a result of these similarities, the Judge found that there was a likelihood of confusion, and so infringement under s.10(2).

Unfair advantage or detriment to the distinctive character or the repute of the trade mark?

The trade mark proprietor also argued that there was infringement under section 10(3) of the TMA, which requires the proprietor to show that the trade mark has a reputation, and that the Defendant’s use either takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.

The overall test for showing a reputation here was whether the Trade Mark was known by a significant part of the UK public concerned with restaurant services.  The Judge found that the Trade Mark did not meet this requirement when assessed on an economic basis, as the market share of that one restaurant was “tiny”, and that the sums spent in marketing the restaurant were “very small”, both when assessed in the context of the restaurant market of the UK as a whole.  This is despite significant turnover for one restaurant of between 5 and 6 million pounds per year, and the business being recipient of multiple awards and press coverage.

Similarly, the Judge found nothing in support of the suggestion that the reputation of the trade mark is clearly being exploited, or that there was a change (or likelihood of change) in the economic behaviour of the average consumer consequent on the use of Defendant’s sign to establish detriment.  The claim therefore failed on this ground.

Honest Concurrent Use

The Defendant sought to rely on the defence of honest concurrent use, arguing that it had started trading in 2009 and was not aware of the Claimant, and that there had been co-existence in the 12 years since then.

The Judge however concluded that the Defendant ought to have been aware of the Claimant’s existence, for example as a result of undertaking a trade mark or internet search prior to opening in 2009.  He saw no reason to distinguish between the sizes of businesses in terms of who should be expected to undertake such a search, noting that “a public register of other parties’ rights is there to be consulted, in part so that those rights may be respected.

While expressing some sympathy for the Defendant, the Judge added that had the owner conducted even a basic internet search for “China Tang”, he would likely have found the Claimants’ website and/or reviews and commentary about it.  Honest practices would then have required him to obtain legal advice about the intended trading name for his business.

Points to Takeaway
  • The power of a trade mark – here a registered trade mark for a logo incorporating the trading name was successfully used against a company trading using a different logo (albeit containing the same words). That other company here may not even be seen as direct competition to the trade mark proprietor, as there was unlikely to be an overlap between the customers of a high-end restaurant and a local takeaway.  Nevertheless, the Judge found a likelihood of confusion on the part of the public.

  • Difficulties establishing “reputation” - If relying on infringement under section 10(3), a trade mark proprietor will need to show reputation across the UK, not just locally (e.g. in London). This may require significant revenue in the relevant goods/services market concerned, and expenditure on marketing comparative to other operators within that market.  This may restrict the potential use of section 10(3) to only the largest brands in any relevant market.  The proprietor will also need to have real reasons/evidence to suggest an unfair advantage or detriment, rather than “mere suppositions” as put forward by the Claimant in this case.

  • A very narrow honest concurrent use defence? The Judge indicated that even where the Defendant is a small, single location business, it is expected to have undertaken trade mark and/or internet searches for competitors using the same or similar brand names prior to deciding on its own brand name.  The benefits of instructing an IP professional to undertake such a clearance search are therefore clear for any sized business. Indeed the Judge commented that: “setting up even the smallest business is likely to require competent legal advice on a variety of matters and that should include the trading name.” Instances where this defence may successfully be raised are arguably now going to be rare, particularly now it may be said that all new businesses will have access to the internet to undertake searches themselves as a minimum starting point.

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Danny is a solicitor in our Intellectual Property team, with a specific focus on contentious intellectual property matters.
He advises clients on the full spectrum of intellectual property rights, including patents, trade marks, designs, and copyright. Danny has particular experience advising clients in the retail, brewing, education, technology, online and social media, and IT sectors.

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Trade mark disputes in the spirits industry

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Breweries have made the news in recent months with some top brand drinks involved in trade mark disputes. However, it is not just breweries in the food and drink sector that encounter these issues when looking to apply for trade marks for new brands and product names - other alcoholic drinks manufacturers have too.

What should drinks manufacturers do?

All drink manufacturers (and their respective brands teams) should generally follow the same steps as breweries when deciding on a new brand or trade mark:

  • Decide what they would like to register (a word or phrase, a logo, or a combination), ensuring that it is not overly descriptive of the goods or services and not a generic phrase.

  • Decide which goods or services are to be covered by the registration. For distilleries, the obvious choices are in Class 33 which includes alcoholic beverages other than beer, such as gin, vodka and whisky.

  • Decide which territories to be covered by the registration(s). Ultimately this depends on where the brand intends to trade.

  • It would then always be advisable to search for existing similar or identical brands and trade marks. If budget allows, a proper clearance search by a suitably qualified professional will be a sound investment.

There have been a number of recent decisions at the UK Intellectual Property Office relating to trade mark applications for other alcoholic drinks, such as spirits, where the applications were opposed by proprietors of earlier registered, similar trade marks.

Brewdog’s ‘Tiger Strike’ v ‘Tiger Vodka’ - A Tiger in the (Distilling) Tank?

Throughout Brewdog’s rapid expansion in the alcoholic drinks market, they have regularly encountered issues with their branding and trade mark strategy – both when enforcing their trade marks and when their applications have been opposed by a competitor with an earlier brand.

A recent decision illustrates that Brewdog’s trade mark difficulties are not limited to their beer brands and trade marks.  In June 2020 Brewdog applied for a trade mark for ‘Tiger Strike’ for the following goods in class 33:

Alcoholic beverages (except beer); spirits; distilled spirits; whisky; blended whisky; liqueurs; gin; vodka; rum.

There was however an existing ‘Tiger’ brand used by a separate company for various spirits, which was protected by way of six UK trade marks registered for what were found to be identical goods.  These were registrations for the following marks: ‘Tiger Gin’, ‘Tiger Rum’, ‘Tiger Spirits’, ‘Tiger Tequila’, ‘Tiger Vodka’, and ‘Tiger Whisky’.

The decision focused on comparing Brewdog’s ‘Tiger Strike’ with ‘Tiger Vodka’, as the officer noted that the other marks would not put the opponent in a better position (as they each consist of the word ‘Tiger’ followed by the name of an alcoholic drink).

The opponent relied on section 5(2)(b) of the Trade Marks Act 1994, which provides that:

a trade mark shall not be registered if because—

(A) it is identical with an earlier trade mark and is to be registered for goods or services similar to those for which the earlier trade mark is protected, OR

(B) it is similar to an earlier trade mark and is to be registered for goods or services identical with or similar to those for which the earlier trade mark is protected,

there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.

The opposition to Brewdog’s trade mark application succeeded in this case, after the hearing officer made a global assessment of all relevant factors, with the decision noting in particular that:

  • The first words are identical, the marks have medium visual, aural and conceptual similarity, and the second word in the earlier mark is descriptive;

  • The use of ‘Tiger’ in the earlier mark was inherently distinctive of the goods covered by that trade mark to a medium degree - it neither alludes to nor describes the goods;

  • The identity of the goods covered by the marks may be used to offset a lesser degree of similarity between the marks; and

  • The goods will be purchased with no more than a medium level of attention, a significant proportion of average consumers will note the differences between the respective marks but conclude that the marks relate to economically-linked undertakings, e.g. ‘Tiger Strike’ might be perceived as a range or line of drinks under an overarching earlier brand ‘Tiger’.

This decision shows again that choosing a distinctive and unique name for a new sub-brand of goods is important – it may be difficult to obtain trade mark protection for your new brand, and it may also leave you open to a trade mark infringement claim and a costly rebrand exercise.  As mentioned, a clearance search prior to deciding on a new brand may of course help to avoid such situations, or at least provide a better picture of the potential risk. Filing an application itself can also flush out existing rights.

The decision also shows that what may be seen as a smaller competitor can succeed against a larger competitor, provided they have the relevant, earlier registered rights (as the opponent did here).  The protection afforded by an earlier registered trade mark can have real value to businesses of all sizes, particularly in crowded industries where brand recognition and reputation are key.

Thirsty Jack v Jack Daniel’s – Jack of all trade marks?

Another recent UKIPO Tribunal decision concerned an applicant’s attempt to register a trade mark for ‘THIRSTY JACK’ in relation to various alcoholic beverages in Class 33, including Alcoholic beverages, except beer and Alcoholic beverages with fruit carbonated.

This application was, perhaps predictably, opposed by Jack Daniel’s Properties Inc, who owns various trade marks incorporating “Jack Daniels” and even just the word “Jack” (including for “Gentleman Jack” and “Winter Jack”).

The opposition was again brought under section 5(2)(b) of the Trade Marks Act 1994.

The opposition succeeded based on each earlier trade mark raised after the hearing officer considered the following in relation to the trade marks relied upon by Jack Daniel’s:

Comparing “THIRSTY JACK” vs “JACK DANIEL’S
  • The goods covered by the two trade marks are either identical or share between a medium and high level of similarity;

  • The average consumer is again an adult member of the general public who pays a medium level of attention during the purchasing process;

  • Both marks form a unit with no one word dominating;

  • Low level of visual and aural similarity and a very low level of conceptual similarity;

  • The Jack Daniel’s mark has a reasonable level of inherent distinctive character but that this is enhanced to a high level because of the use made of the mark.

Comparing “THIRSTY JACK” vs “WINTER JACK” / “GENTLEMAN JACK
  • The same as above in relation to similarity of goods, average consumer, and domination (or lack of) of words within the marks;

  • The marks have a medium level of visual similarity and a low to medium level of aural and conceptual similarity;

  • The Jack Daniel’s marks have a reasonable level of inherent distinctive character but enjoy a moderate level of enhanced distinctive character.

This decision shows how larger brands that have established themselves in a marketplace will look to enforce their trade marks against similar new entries into the market, and how they can succeed where there is an overlap between the brand names (e.g. even in just the word ‘Jack’ in this example) and the goods covered, which persuades the tribunal that there exists a likelihood of confusion on the part of the public.

The decision also shows how the distinctiveness of an earlier mark can be enhanced as a result of the use made of the mark over time by the trade mark owner. This is particularly something to consider when a new brand is considering applying for a trade mark similar to one of its more well-known competitors.

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Danny is a solicitor in our Intellectual Property team, with a specific focus on contentious intellectual property matters.
He advises clients on the full spectrum of intellectual property rights, including patents, trade marks, designs, and copyright. Danny has particular experience advising clients in the retail, brewing, education, technology, online and social media, and IT sectors.

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Guides & Advice

Intellectual Property | Considerations and difficulties for breweries

Over the last few years, there has been an increase in trade mark applications for UK beer brands - read our previous blog on this topic.

There has since been a number of interesting beer-related trade mark decisions, and very public disputes, which demonstrates the range of difficulties that may be encountered by breweries (big and small) relating to their branding.

Here we provide a round-up of some of those significant trade mark decisions.

Hugo Boss vs Boss Brewing - Show them who’s Boss?

Earlier this year, it was well publicised that Boss Brewing applied for a trade mark for its logo, incorporating its trading name “Boss Brewing”.  They then received a cease and desist letter from Hugo Boss, the fashion giant, requesting that they ceased using the name “Boss”, and their application was opposed.

This was resolved after months of negotiations, with their beers "Boss Black” and “Boss Boss” changing to “Boss Brewing Black” and “Boss Bossy”.  The brewery are also unable to sell any clothing under the Boss Brewing name.

This case demonstrates that larger brands will often strongly defend their brands, even where they do not have trading activity or trade marks relevant to the brewing industry.

This dispute also received widespread media attention as a “David vs Goliath” battle, when comedian Joe Lycett temporarily changed his name by deed poll to Hugo Boss.  Hugo Boss was perceived as a bully in this coverage, which should be a real consideration for larger brands when looking to enforce their rights against a smaller brand or business.

HBO vs Wadworth Brewery - Game On

Another large brand which rigorously defends its marks is HBO, the television network which owns the rights to TV shows such as Game of Thrones.

They have been seen to oppose trade marks for applications for phrases incorporating “Game Of…” (see for example Game of Vapes), but in 2019 they opposed Wadworth brewery’s attempt to register a trade mark for their pump clip of their ‘Game of Stones’ beer, featuring an image of Stonehenge.

In this case, the brewery was successful in arguing that the Game of Stones sign would neither lead to a likelihood of confusion with the Game of Thrones brand, nor would it constitute a misrepresentation.  It was recognised however that the mark may bring the opponent’s sign “fleetingly to mind”, but this was not enough to successfully oppose the registration.

Whilst this is an example of a brewery successfully defending its position, they inevitably had to incur legal costs in doing so. The opposition was brought as a result of the brewery’s decision to name a beer using a play on words based on the show’s name, and to then seek to register this as a trade mark of their own.

Tiny Rebel Brewery vs Tropicana Products – Welcome to the Clwb

A further decision concerns Welsh brewery Tiny Rebel’s attempt to trade mark the name of one of their flagship beers, ‘Clwb Tropicana’.  This prompted PepsiCo (owner of the rights in the Tropicana soft drinks brand) to both oppose the trade mark application, and to write to the brewery to demand that they stop using the beer’s name.

The opposition succeeded both on the basis of “passing off” (PepsiCo owned ‘goodwill’ in the mark Tropicana in the UK, there would be a misrepresentation to consumers, and that PepsiCo would suffer loss as a result), and on the basis of the marks being similar with there being a likelihood of confusion on the part of consumers.

The beer has since been renamed Clwb Tropica IPA.

What do breweries need to consider when naming new beers or applying for trade marks?
  1. Continue to consider applying to protect flagship beer brand names through trade mark applications,

However, note that companies may have “watch services” set up which monitor for applications made that are similar to particular phrases or words. The various intellectual property offices also notify existing trade mark owners of similar applications.  Such notifications may bring the use to the attention of trade mark owners, which may not have otherwise been discovered.

  1. Undertake clearance searches for existing third party rights and/or seeking advice from an IP lawyer before the initial use of a new beer name

This is particularly important if you are concerned that it is similar to either another brewery’s brands or more widely known brands, even if they are not in the brewing industry.  This advice may be sought initially, and/or prior to making a trade mark application.

  1. If you receive a cease and desist letter, remember that it does not necessarily mean that that the other party has a valid claim.

Obtaining early legal advice on a letter received would allow you to make a judgment on the merits of the claim and to see whether any action needs to be taken.

  1. Even if the complainant’s case is not particularly strong, they may nevertheless seek to continue to oppose the application and/or demand that your use of the mark ceases.

Even meritless claims incur costs and time in defending them, and for example in UKIPO proceedings costs are only awarded to a successful party on a contribution basis, rather than the full costs incurred.  Early advice may help to avoid or reduce these costs being incurred unnecessarily.

What should existing trade mark or brand owners need to do if they become aware of a similar name being used or applied for as a trade mark?
  1. Consider opposing a trade mark application

Once the trade mark has been registered it can be more difficult and costly to invalidate it if it becomes a problem.

  1. Consider the status and size of the recipient if you are considering sending a cease and desist letter

You also need to consider the risks of taking action and bringing negative publicity (for example that experienced by Hugo Boss and BrewDog recently), against the threat to your brand/business that they pose.  It may be that a confidential arrangement can be reached, seeking to distance the brands from each other and setting out how they can co-exist effectively.

We understand that your brand is your public face and embodies your reputation

In many cases your brand and reputation will have been built up over many years and is one of your business' most important assets. Your trade mark helps you to differentiate your products and services from those of your competitors, and adds value to the products and services you sell.

If you have concerns around your brand or trade mark rights, or the activities of others, then our intellectual property team can guide you through the process, having acted for clients in the brewing industry previously.

Read more about our trade mark experience.

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Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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What’s next after coming out?

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Whilst these topics may be tricky to discuss, early communication with family and friends can help to minimise the risk of family conflict and make sure loved ones are protected for the future.

Preparation is key

It is sensible to consider your current financial and legal arrangements, including your existing will and powers of attorney before telling your friends and family, especially if you are unsure of how they will react.

A legal adviser can offer advice ahead of time and assist in the formulation of a contingency plan, allowing you to quickly safeguard your interests, should any family relationships come under strain as a result of the news.

Give it time

It is important to remember that family and friends may need some time to process your news – their initial reaction might be out of emotion and they may not always feel that way. In terms of moving forward, discussions from both a financial and a personal perspective will need to be had, but the timings and outcome for every couple will be unique. Whilst separation and divorce may be best for some, the idea of staying together and living as companions may better suit others.

Thinking about divorce

Currently, UK law dictates that adultery can only occur between members of the opposite sex. With this in mind, should either partner decide to leave the marriage, providing they’ve not been separated for two years or more, a divorce application would have to be issued on the grounds of unreasonable behaviour. Under these circumstances, the person making the application must show that the other party has behaved in such a way that the Applicant cannot reasonably be expected to live with him or her, causing the marriage to irretrievably break down.

In this situation, seeking support from an accredited family lawyer is advisable and often results in a far better outcome for all involved.

In the absence of any children, the separation process and division of assets can be relatively simple. However, where children are involved, the process can be more complicated, often requiring arrangements for maintenance payments and provisions for the children’s futures to be made.

Moving forward

Should a new relationship be formed, it is often important to ensure that children from the first marriage are provided for. Financial agreements, such as a Living Together Agreements/ Cohabitation Agreements, can protect assets owned prior to living with a new partner, ensuring complete transparency around who owns what. For those intending to remarry, a prenuptial agreement is also advisable in order to help to ringfence the assets brought into the marriage and clarify those that are to be kept separate.  Re-marriage will automatically revoke any previous Will you may have prepared – it is important to ensure that a new Will is prepared as soon as possible before or after the re-marriage, particularly if you have children from the previous marriage that you wish to benefit.

As with the breakdown of any relationship, open communication, allowing time for family to accept the news and specialist legal support can help to safeguard the future for loved ones and pave the way for a new chapter.

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Stephanie deals with all aspects of relationship breakdown to include divorce, children matters and resolving the financial issues upon separation.

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Intervention of Khokhar Solicitors

22 Jun

SRA Intervention

Intervention of Khokhar Solicitors

Devereux & Co has been closed down by the Solicitors Regulation Authority (‘the SRA’). […]

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Shakespeare Martineau appoints expert director to company secretary team

20 Jun

Corporate & Commercial

Shakespeare Martineau appoints expert director to company secretary team

Shakespeare Martineau has appointed a new director to help grow and enhance the reputation […]

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SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

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Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

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Civil partnerships: Offering financial security for cohabiting couples

Blog | Family

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What is a civil partnership?

Couples in a civil partnership benefit from the same rights and protections as their married counterparts. However, it is free of religious connotations and ideas of ownership, making it an attractive option for those for want to legally commit to each other in a less traditional manner.

What benefits does a civil partnership offer?

There are a host of reasons why a couple might opt for a civil partnership, but one of the main reasons is the financial security it offers.

  • Income tax – Civil partners are entitled to the same income tax allowance as married couples.

  • Inheritance tax – Civil partners are completely exempt from inheritance tax should they inherit their partner’s estate. The surviving civil partner can also effectively double the amount that they can leave to family and friends without having to pay inheritance tax, by transferring the first to die’s unused nil rate band.

  • ISAs – Civil partners can inherit their partner’s tax-free ISA allowance, by using the Additional Permitted Subscription (APS).

  • Transfer of capital assets – These transactions become tax neutral for civil partners, allowing them to move funds and assets between them without generating an immediate charge to capital gains tax.

  • Pensions – Private and occupational pension schemes offer the same rights to civil and married partners. The surviving partner may be able to claim a higher state retirement pension, based on the first to die’s national insurance contributions.

However, for those wishing to enter into a civil partnership, there are still administrative tasks that must be completed, such as the drafting of new wills and other documents. Assets should also be considered and advice surrounding prenuptial agreements should be sought.

Get In Contact

Matt works with individuals and their families to help them negotiate the many pitfalls they can encounter when planning for their future by providing pragmatic, bespoke advice.

LGBTQ Legal Services

LGBTQ+ Solicitors

As part of our ongoing commitment to increasing access to legal services for all, we have developed a focus in answer to requests from the LGBT community for advice to be provided in an approachable, empathetic and non-judgemental way by lawyers that truly understand the issues they may face particularly concerning their personal matters.

Our Thoughts

All the latest thoughts and insights from our team

Intervention of Khokhar Solicitors

22 Jun

SRA Intervention

Intervention of Khokhar Solicitors

Devereux & Co has been closed down by the Solicitors Regulation Authority (‘the SRA’). […]

Read article Right Arrow

Shakespeare Martineau appoints expert director to company secretary team

20 Jun

Corporate & Commercial

Shakespeare Martineau appoints expert director to company secretary team

Shakespeare Martineau has appointed a new director to help grow and enhance the reputation […]

Read article Right Arrow

SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

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Estate planning: What needs to be considered after transitioning

Blog | Estate Planning

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In an already unsettled time, disputes over estate planning are even more unwanted.

Matt Parr, one of our private client associates, explains the importance of carefully considering the implications of a gender change when it comes to wills and inheritance:

Correct identification

There’s a fear of stigmatisation amongst the trans community, which may hold people back from broaching the topic of altering a will with their family.

However, no matter how difficult the conversation may be, it is essential that wills are updated to reflect new gender identities. If it is not done, conflicts may arise later on, causing unnecessary stress.

The Gender Recognition Act 2004

On 4 April 2005, the Gender Recognition Act came into force. Under this, a person’s new affirmed gender cannot be legally recognised until they have a Gender Recognition Certificate (GRC). These are not retrospective, meaning wills drafted before 4 April 2005 will be interpreted as the beneficiary’s assigned birth gender instead of their new gender.

Obtaining a Gender Recognition Certificate is not a short process. It requires people to live as their chosen gender for two years, after which they must carry out a series of in-depth tests and be put in front of a Gender Recognition Panel. It’s best to start the estate planning process during this time to avoid extending a stressful period further.

Re-drafting your own will

For the family of those who are considering transitioning or are in the process of doing so, it may be wise to re-draft an existing will to include gender-neutral terms for beneficiaries. This allows children to benefit whether they choose to change their gender or not, removing the chance of any issues that the will-writer may have experienced themselves.

Seeking expert estate planning advice should not be avoided due to fear of judgement. Transgender people must find an adviser who puts them at ease, making the will-writing process as stress-free as possible and ensuring their assets and loved ones are protected.

Get In Contact

Matt works with individuals and their families to help them negotiate the many pitfalls they can encounter when planning for their future by providing pragmatic, bespoke advice.

LGBTQ Legal Services

LGBTQ+ Solicitors

As part of our ongoing commitment to increasing access to legal services for all, we have developed a focus in answer to requests from the LGBT community for advice to be provided in an approachable, empathetic and non-judgemental way by lawyers that truly understand the issues they may face particularly concerning their personal matters.

Our Thoughts

All the latest thoughts and insights from our team

Intervention of Khokhar Solicitors

22 Jun

SRA Intervention

Intervention of Khokhar Solicitors

Devereux & Co has been closed down by the Solicitors Regulation Authority (‘the SRA’). […]

Read article Right Arrow

Shakespeare Martineau appoints expert director to company secretary team

20 Jun

Corporate & Commercial

Shakespeare Martineau appoints expert director to company secretary team

Shakespeare Martineau has appointed a new director to help grow and enhance the reputation […]

Read article Right Arrow

SHMA® On Demand

All the latest on-demand content

Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

Webinar Teachers’ Pension Scheme – strategic issues independent schools need to think about In […]

Register Right Arrow