01 February 2012 18:56
Larry Fenelon was invited by Drivetime on RTÉ Radio 1 with Mary Wilson to discuss Ireland's track record in prosecuting insider trading and market abuse offences in the last decade. Extracts of the interview confirm the forthcoming changes in the law in this area.
Click below to hear the interview in full.
31 January 2012 16:50
On 26 January 2012, Leman Solicitors hosted a sports sponsorship workshop held in conjunction with Halpin Sport. The seminar was attended by numerous governing bodies and individuals involved in the Irish sports industry. The purpose of the seminar was to enhance knowledge within sports organisations on what sponsors want, how much to expect in sponsorship fees, what to expect in return and the key elements to negotiations and legal agreements.
Please click here to view Larry Fenelon's presentation which includes audio and video slides.
If you have any queries on sports sponsorship agreements feel free to contact Larry Fenelon at +353 1 639 3000 or lfenelon@leman.ie
13 January 2012 17:50
Several recent EAT decisions point to an increasing trend for the Employment Appeal Tribunal to find that although a redundancy situation may be very genuine and necessary, the way the redundancy has been carried out was unfair and therefore an unfair dismissal. The compensation awarded in these cases has also been relatively significant. Leman Solicitors have prepared a template checklist for employers to use to ensure they are adhering to fair procedures when carrying out redundancies. Ultimately it does not matter how justified the reasons are for redundancies and the urgency required, employers must still apply fair procedures in order for the dismissal to be held to be fair.
Click here to access the checklist
If you have any questions or queries as regards employment law please feel free to contact Linda Hynes at lhynes@leman.ie or +353 1 6393000.
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change
11 January 2012 18:19
Licensing expert, Catherine Cooney, prepared "A 'Quick Guide' to Restaurant Licensing" for members of the Restaurant Association of Ireland ("RAI") providing useful tips for both current and prospective licence holders. Click here to read the guide
All licensing applications brought on behalf of RAI members will be subject to a 10% discount on our usual professional fees.
If you have any questions or queries as regards licence applications or renewals please feel free to contact Catherine Cooney at ccooney@leman.ie or +353 1 639 3000.
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.
20 December 2011 14:52
An article by employment law solicitor, Linda Hynes, was published by the Sunday Business Post on 18 December 2011. The article provides advice to employers and employees alike on how best to avoid the unintended consequences that can sometimes arise from the office 'Christmas Party'. Click here to read the article
13 December 2011 09:14
Commercial Property - Advising UK Equity Fund in purchase of apartment block in Dublin 4
Commercial Property - Acting for Receiver in sale of several properties.
12 December 2011 17:26
Litigation – Successful injunctive proceedings on behalf of Receiver appointed on behalf of an international Bank.
Litigation – Representing family in application guardianship and parentage orders in the context of an international surrogacy.
12 December 2011 17:05
Professional Services - Represented Chartered Accountant before Disciplinary Tribunal.
Professional Services - Represented solicitor in High Court claim of negligence re development.
12 December 2011 16:59
Employment - Representation to EAT on whether contractor of coaching services was an employee.
Employment - Drafting and reviewing independent contractor contracts for services.
12 December 2011 16:54
ICT Law - Acting for Investor in drafting and negotiating investment agreement of in excess of €5m in Technology Company.
ICT Law - Drafted software license with annualized turnover of €100,000.00 and service level agreements.
12 December 2011 16:53
Sports Law - Advising athlete in JSI arbitration re suspension.
Sports Law - Representation for soccer club before Equality Tribunal.
09 December 2011 14:07
For the last two or three years banks have been reluctant to formally appoint Receivers over bad loans. Since the summer however we have seen a marked upwards trend in appointments, especially in Fixed Charge Receiverships, a relatively new phenomenon in Ireland but very similar to LPA Receivers in the UK. Essentially these are "stripped down" Receiverships where the lender appoints an estate agent directly to sell a property as a Fixed Charge Receiver, rather than appointing an Accountant or other insolvency specialist. The idea is to reduce the costs associated with the appointment, to maximise the possible return for the lender.
We expect to see more appointments over the coming weeks and the courts could be busy with some challenges. Receivers are always appointed on the basis of a document, typically a mortgage deed, where a contract (usually a loan agreement, but sometimes even an overdraft agreement or other facility) has been broken. The powers of the Receiver will be governed by the document, and supplemented by the 2009 Land and Conveyancing Reform Act.
Typically appointments are being made by Banks or NAMA using a simple deed of Appointment, which allows the Receiver to step in a take over the property (and, in many cases to manage the assets and collect rents etc). Whilst the Receiver will then bring the property to sale and find a buyer, agree a price etc, the actual deed of transfer will be executed by the Bank in the end. This helps to preserve clean title, so that buying from a Receiver should not cause a purchaser any title problems. The main downside however is that the Receiver will not know a lot about the property and will be selling on a "sold as seen" basis. It is very important to make sure planning, building regulations and access issues are very well cleared up before you buy, as getting them tidied up afterwards can be expensive and time consuming.
At Leman Solicitors we have expertise in acting for Receivers, Banks and borrowers in distressed property situations.
06 December 2011 11:50
Leman Solicitors are winners of the Corporate INTL Legal 2011 Awards for ‘Sports Law Firm of the Year in Ireland’ in recognition of our specialist legal knowledge of Irish Sports Law. Leman Solicitors act for over 25 National Governing Bodies in Ireland, as well as a host of professional athletes and clubs from every sporting code. We are regularly invited to lecture on Sports law and have written extensively on the area.
Leman Solicitors provide advice on the following areas: -
06 December 2011 11:47
Besides a new sponsor, a new name and some new teams, what changes have been made to the Disciplinary code of the Rabo Pro 12 league? What changes can players expect in the sanction they get when cited, sin binned or sent off in 2012? The optics in any event have certainly changed, for the better.
The event organisers are acutely conscious of the historical charge that home unions who administer discipline have a conflict of interest when disciplining their international stars. The John Hayes stamping suspension in 2009 is as good an example as any. Munster prop John Hayes was handed down a six week suspension for stamping on the head of Cian Healy during a match between Leinster and Munster in the then Magners League match at the RDS in October 2009. This was a stamp to the forehead of Cian Healy so it should have been considered the higher end for the offence of “stamping an opponent”. The reason why it should be considered high end is obvious: - the danger to the skull of a player; the long term damage that may be caused. Also the stamping on someone’s head is a physically cowardly act where the victim is defenceless on the ground. The maximum suspension that could have handed down was 52 weeks and the minimum was 2 weeks. The Disciplinary Committee, which was composed of IRFU appointees issued handed down a six week suspension on Hayes, which conveniently expired on 14 November, the day before Ireland took on Australia in Croke Park on 15 November 2009, a game in which John Hayes participated in. Despite the lenient suspension Hayes appealed the decision to the Appeals Committee (again all IRFU appointees) which reduced the suspension to 5 weeks. You can now appreciate why, just from this example, there has always been an unspoken suspicion that home unions have a conflict of interest when imposing suspensions on international players in what is essentially an international league.
It follows that the event organisers of the Rabo Pro 12 have taken the opportunity in the revised 2011/12 disciplinary rules for the tournament to address the question mark over the independence of the disciplinary infrastructure of the league. They did this by imposing greater ‘step in’ rights where presumably they could intervene where certain incidents were not being investigated or certain disciplinary officials appointed could be vetoed.
1. Referral of Misconduct
Under the 2010/2011 rules it was clear that although a misconduct matter could be referred by a Union, Club, disciplinary committee, an appeal committee or a Tournament Director to the Disciplinary Officer and the Disciplinary Officer would then have sole discretion as to whether to investigate the matter and/or bring a Misconduct complaint (or take any other action) under the Disciplinary rules.
Whilst the referral system still continues, it appears that the discretion of the Disciplinary Officer to decide if misconduct is to be prosecuted has been diluted under the 2011/12 rules because now the Board of Celtic Rugby may direct the Disciplinary Officer to investigate a matter and/or bring a Misconduct Complaint.
2. Temporary suspensions
Perhaps the most significant changes under the 2011/2012 Disciplinary Rules concern the issue of temporary suspensions imposed on players.
Under the 2010/2011 rules the Disciplinary Committee were obliged to impose a one week suspension on player who had three “sin-bins” in the one season. Now however the Disciplinary Committee have been afforded discretion to decide how long or indeed short the suspension should be.
The 2011/2012 rules have brought further clarity to the issue of temporary suspensions. The rules state that when a player serves a one week suspension for having received three sin bins his slate is then wiped clean. If the player is to receive another one week suspension he must then have to accumulate another separate three sin bins in the same season.
The rules also clarified that a player does not carry any record of sin bins from one season to the next. Each player starts the new season with a clean slate.
3. Citing Commissioner appointment
Historically the host Union was responsible for appointing a Citing Commissioner for each match played. Whereas that provision stays intact under the new rules, Celtic Rugby are afforded the right to determine the choice of Citing Commissioner as it sees fit.
In summary players, clubs and their unions in the Rabo Pro 12 can expect a more robust and impartial disciplinary system where responsibility for the administration of justice will be increasingly removed from the home unions. The Board of Celtic Rugby have decided finally that ‘Justice must not only be done but must be seen to be done’.
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.
06 December 2011 11:45
Leman Solicitors together with sponsorship and marketing consultants, Halpin Sport are hosting a breakfast seminar from 7.45am to 9.00am on Thursday 26 January at our offices at 8 – 34 Percy Place, Dublin 4 (www.leman.ie/contact-us). Spaces are limited. To confirm your place reply to gbluett@leman.ie
We will be covering the following topics: -
06 December 2011 11:44
Recent work undertaken by the Sports Law team:
02 December 2011 14:20
Background
As you may be aware the Temporary Agency Workers Directive (2008/104/EC) implementation date is looming. Under the Directive, Ireland should have implemented Irish legislation implementing the directive in Ireland by Monday 5 December. This has not happened and the Government is yet to even publish a draft bill. This means that the Government may be liable under EU principles for a breach of EU law for the delay in implementation.
Purpose of the Directive
The purpose of the Directive is to provide equal rights to agency workers to those of direct employees. This equal treatment is in relation to basic working conditions and access to employment opportunities.
Delay
The Directive allows Member States to agree derogation with the relevant social partners on when the directive would apply to agency workers. This means that there was scope to agree that the rules would not apply until an agency worker had achieved a certain qualification period (length of service) with an end user employer. IBEC had sought a 12 month period before the equal treatment rules would apply to agency workers. The UK has brought in a 12 week qualifying period and implemented the Directive into UK law on 1 October 2011. Unfortunately the social partners in Ireland have not been able to reach an agreement on the qualifying period. It appears that ICTU were seeking concessions in relation to Sunday working rates, employment regulation orders and new arrangements on collective bargaining as part of the negotiations. These were issues the Minister Richard Bruton was unwilling to concede and so the talks broke down. Agreement with the social partners was essential to bring in derogation.
What Now?
The Government has confirmed that it will push the legislation through Cabinet before Christmas in order to implement the Directive as soon as possible.
The Effect
The Minister last night advised employer representatives that from Monday agency workers will be entitled to the same pay as employees who are directly recruited. The Government’s Bill, when published before Christmas, will confirm this and will define pay for the purposes of the legislation as including the following:
The Bill will also provide for equal treatment in respect of the following:
Temporary agency workers will also be given rights in relation to access to the collective facilities and amenities of the end user employer (e.g. canteen or other similar facilities, childcare facilities and transport services) under the same terms as directly recruited employees and must be informed about vacant posts.
The Minister has confirmed that the following will not be included:
What Should You Do?
The Minister has proposed to back-date the incoming legislation to the 5 December 2011 this means that employers will have to try to comply with the unknown before it is even published. It is still unclear what the full effect of this legislation could be and when it will apply to private sector employers.
To discuss your current agency worker arrangements please contact Linda Hynes on 01 639 3000 or lhynes@leman.ie
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.
29 November 2011 17:56
Introduction
When investing in a private company, most experienced investors will insist that some form of investment agreement be put in place. The purpose of such agreements is to secure and protect their investment, and the scope and complexity of the agreement will typically depend on a number of factors, including:
Where the amount being invest is relatively small, then the investment agreement may be very simple. However where the investment is significant and/or involves the acquisition of a substantial proportion of the issued shares in the company, the agreement may go considerably further and set out a number of restrictions which affect both the company and the other shareholders in the company.
We set out below a summary of the details that are often included in investment agreements
What do investment agreements cover?
Depending on the factors mentioned above, investment agreements will address some or all of the following:
(i) Acquisition - what is being acquired
(ii) Control - who controls the Company?
(iii) Future share issues - how, to whom and at what price can more shares be issued?
(iv) Exit - how, to whom and at what price can a shareholder sell their shares?
Under each of these headings there are then further details, which we out below.
(I) Acquisition – what is being acquired?
Every investment agreement should, at a minimum, set out the number of shares being acquired, the price at which they are to be acquired and what percentage of the issued shares they will consist of. For many simple investment agreements, this as far as they go.
However, if an investment agreement is limited to this, it gives the investor no comfort regarding the actual state of the company or its future direction. Accordingly, investment agreements may also typically include:
Warranties are promises about the state of the company. They can be given by the company and/or by the other shareholders, and they provide re-assurance to the investor that it is acquiring what it thinks it is acquiring. Warranties for technology companies typically cover specific issues such as the intellectual property rights held by the company in the technology and key licences and/or contracts that might be in place, as well as standard concerns such as financial position, litigation, employment issues etc. However, warranties impose financial obligations on those who give them and not be given lightly. This is particularly the case where they are to be given by existing shareholders, as these shareholder do not receive the funds directly but nonetheless bear some of the risk.
Where the key value in a company rests in one or more of the other shareholders (which is often the case in start-up and early stage companies) the investors may also seek to place non-compete or restrictive covenants on the founders, to tie them into the company for a period in order to ensure that value stays in the company.
(II) Control
Where a significant investment is to be made in a private company (both in terms of amount and percentage), the investment agreements will often look to deal with on-going control of the company. This is normally through two issues:
(a) board of directors; and
(b) restricted transactions
(a) Board of directors
Each company is controlled by its board of directors, save to the extent that the power of the board have been limited. Unless otherwise provided, a decision by the majority of directors is binding on the company. Further, all directors are appointed by the majority of shareholders and can only be removed by resignation or by the majority of shareholders.
Accordingly, an investor making a significant investment will often require that:
(b) Restricted transactions
Where an investor is a minority shareholder and/or a silent investor, they may be willing to cede day-to –day control to the directors. However, in order to maintain the value in the company and/or their interest in it, they may seek to restrict certain transactions. From the directors’ perspective, these restrictions will naturally inhibit their ability to freely manage the affairs of the company, and accordingly there will always be negotiation about the extent of these restrictions and what hurdles need to be overcome before they can be passed.
(III) Future share issues
At some point, every company is likely to need to raise further funds, which may be carried out by the issue of further shares. Of course, the effect of issuing further shares is to dilute the shareholding of every other shareholder, including the investor. The concern from the investors perspective is that their investment would be negatively impacted by such issue. However, the company will not want to be restricted from issuing further shares in order to allow it to raise funds and continue trading. Accordingly, issues such as offer-round, pre-emption and other options are sometime applied.
(IV) Exit
The critical issue for both founders and investors is the ability to exit the company, as this is the point at which they can realize value in the company. Where shareholders are free to transfer their shares at any point, there can be considerable discomfort amongst existing shareholders and the potential for hostile takeovers from competitors and/or at under value. However, Investors may not wish to be tied in indefinitely to a private company and prevented from realizing their investment. Accordingly, compromises such as fixed deadlines for trade sales or IPOs, the ability to sell at open market value or other options are sometimes applied.
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.
29 November 2011 17:54
1. Tidy up commercial issues in advance
Before entering into negotiations, make sure that all potential commercial issues have been identified and, where possible, dealt with. This includes issues such as making sure that all intellectual property rights are actually held by the company; that all customers have license agreements in place; that key suppliers are contractually bound, etc.
2. Know where you want to go and who with
Know what your long term plan is and what investors at this stage best fit into that plan. Investors and founders are entering into a long term relationship, and like all relationships they should be mutually complementary. Investors should fit both with the enterprise now and with its long term goals (whether that be for future funding, foot-holds in other markets or otherwise).
3. Keep it simple
Complex deals can lead to misunderstandings between the parties, take longer and cost more to implement, and dissuade future investors from coming on board. It benefits everyone to keep the deal simple.
4. Agree the outline
Before committing to the agreement, make sure that you have agreed the outline of the deal in advance in sufficient detail including all the key commercial points detailed above, and record this agreement in writing (this is often called a “memorandum of understanding” or a “heads of agreement”)
5. Implement quickly and don’t seek to renegotiate
Delay in implementation and/or re-opening negotiations sours relationships and can cause investments to fall apart. While some slippage and minor variations in terms is to be expected, any long delays and/or fundamental changes should be avoided.
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.
29 November 2011 17:51
29 November 2011 16:22
1. Document and keep copies of all the software, including all preparatory documents, to establish copyright.
2. Make sure that all employees and contractors sign written agreements transferring all copyright to the employer to ensure ownership of copyright.
3. Put in place comprehensive license agreements and expressly and clearly claim copyright to keep ownership of copyright.
4. Keep as much of the key concepts confidential as possible and commercially practicable.
5. Consider additional intellectual property protections such as registering for patents (for inventions) and trademarks (for brands).
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change
25 November 2011 18:11
1. Online access
Our clients are given a login and password for access to a secure environment where they can view progress on their files.
2. Fee transparency
We are fully committed to being transparent on our fees.
We provide detailed time reports with every invoice setting out the work undertaken on your behalf in a highly detailed manner.
3. Paperless office
We are the first law firm in Ireland to go paperless. This increases efficiencies, reduces unproductive time and helps the environment.
4. Anywhere access
Our solicitors can access your file anywhere. So if you require a meeting off site or at the locus, we can be there with the full file.
5. Document share
We use software that shares documents in a secure forum allowing clients and barristers editorial input to complex documents.
6. File reviews
Every file is reviewed on a monthly basis by the partner in charge ensuring constant progress on the file.
We promise to return your calls within the day, reply to your emails within 24 hours and provide pragmatic advice in plain English.
8. Reporting
We provide an initial report on quantum, liability and reserve.
We provide monthly or fortnightly progress reports depending on your needs. It sets out the next step, deadline and accrued costs.
9. Low overhead
Outsource non-core support functions
10. Technology efficiencies
We use e-briefing systems which heavily reduces the time spent on producing briefs. We use an advanced case management system.
25 November 2011 17:39
The recently published Legal Services Regulation Bill has proposed some radical changes to the legal industry.
Amongst other departures , it paves the way for the introduction of multi-disciplinary practices in the provision of legal services. This envisages a “one stop shop” practice, where clients can procure everything from their conveyancing, to tax and accountancy advice. There is no doubt that this breaks new ground for the provision of legal services in Ireland.
The Bill also provides that a period of public consultation shall be engaged in and that the Legal Services Regulatory Authority (to be established under the legislation) prepare a report on how these Multi-Disciplinary Partnerships should be introduced.
The absence of any mention of the introduction of Limited Liability Partnerships in the new Bill is conspicuous. Both the Solicitors and the Accountancy professions have long campaigned for such a structure to be created under Irish law, to counteract the difficulties created by the joint and several liability imposed in traditional partnerships.
Limited Liability Partnerships (“LLPs”) have been permitted in the UK since the enactment of the Limited Liability Partnerships Act 2000. This legislation provides that Limited Liability Partnerships are deemed to be a corporate body and a separate legal entity from its members. This means that the members of an LLP are not liable for the debts and obligations of the LLP unless they have specifically guaranteed them. However, unlike a company, the LLP itself is not taxed. Its members are taxed on the profits or gains of the LLP’s business.
While one might expect that the introduction of the LLP would have resulted in the lowering of professional indemnity insurance premiums for professional services firms, this would not appear to be the experience in the UK. Indeed, some observers would contend that the reduction of personal risk to the members to the LLP will result in a relaxation of a firms professional standards and attention to detail.
It has been over two years since the Company Law Review Group recommended that a inter-departmental committee be set up to examine whether the solicitors and accountancy professions should be permitted to form LLPs. Having regard to the extensive public consultation that has already occurred in relation to this, it is noteworthy that this was not specifically mentioned in the legislation. However, no doubt the formation of LLP’s will be considered by the Authority in drafting its report.
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.
21 November 2011 16:05
What is copyright?
It is an internationally recognised legal principle that is broadly applied for the protection of original literary, artistic and other works. It grants the copyright holder exclusive rights in respect of the protected works for a limited (but generally quite long) period.
In the EU and the US, original computer programs are protected as “literary works”. The protection extends to preparatory materials and both source and object code.
The protection given by copyright is automatic. It does not have to be registered in a national registry to be effective. This contrasts with, for example, trademarks and patents where registration is required for most protections to apply. Further, there is no legal requirement to keep the works confidential in order for the protection to apply, but practical constraints often dictate that coding is nonetheless kept as confidential as possible.
Copyright protection only applies to the preparatory documents and the coding of computer programs, and does not protect concepts behind the software. The European Court of Justice has recently confirmed in a landmark judgment that copyright protection rarely applies to the GUI of any program unless it is sufficiently original.
Who owns the copyright?
Original ownership of copyright can be a contentious issue in respect of software, even though the concept is quite straightforward.
Under copyright law, it is the “author” of the software who first owns the copyright to that software. The author can in turn allow other people to use the software by:
Contractor –v- Employee - who owns it?
If the individual who created the software is working for themselves, then they are clearly the author and therefore hold the copyright to the software. If they are an employee and create the software during the course of their employment, then their employer is deemed to be the author of the software and the person or entity that holds the copyright.
However, if a person commissions a contractor to develop software for them, or even just to contribute some coding, then that contractor may still hold the copyright to that software even where they are paid for their work. Similarly, if the individual who create the software did so on their own time and outside of their normal duties as employees, then they may hold the copyright to the software even if the software is subsequently used by their employer.
As noted above, the only way to transfer full ownership of copyright is by an agreement in writing. It is therefore critically important that anybody engaging contractors have an agreement in writing, explicitly transferring ownership of copyright.
What rights does copyright give?
Copyright gives the holder the right to prevent someone from infringing their copyright and to claim for damages in the event that someone does infringe their copyright. Generally, copyright is infringed if any person, without the consent of the holder of the copyright:
In practice, copyright is infringed if someone, without the express or implied consent of the copyright holder, uses, copies, distributes or adapts the software. These are very broad rights and copyright is therefore quite a strong protection for the holder of the copyright. The courts are active and sympathetic on the protection of copyright where copyright has clearly been infringed.
What are the limitations of copyright for software?
While copyright is a useful protection for software, it does not provide absolute protection. There are a number of limitations to copyright which must be addressed by taking other, further steps to complement and reinforce the protection given by copyright and to ensure that no unintended rights or competitive advantages are given away.
1. When the owner of software gives a copy of that software to a customer, there can be considerable uncertainty as to what rights have been given by the owner to the customer. This uncertainty can include:
Any uncertainty on these matters works in favour of the customer and against the owner. Some or all of the ownership of the software by the owner by inadvertently leak in this manner. It is therefore critical that clear and comprehensive licence agreements be put in place which expressly set out and limit the rights of the customer to the software on the terms commercially agreed.
2. As noted above, copyright only protects the preparatory documents and the coding of computer programs, and does not protect concepts behind the software. There is no prohibition under copyright on a third party from replicating the process in a computer program by developing his or her own original program. Accordingly, source code should never be disclosed for confidentiality purposes as copyright does not protect the concepts behind the source code.
3. There is no statutory prohibition on reverse engineering software. Accordingly, third parties are also free to reverse engineer software unless contractually prohibited from doing so.
4. Copyright does not protect the name or branding of any software. If there is any branding then trademark protection should be considered.
18 November 2011 18:32
The Protection of Employees (Employers’ Insolvency) Procedures Regulations 2011 came into force on 30 September 2011. The regulations set out the procedures for making claims in relation to redundancy and pension payments from the Social Insurance Fund when an employer is insolvent. These claims must be made to a relevant person or officer appointed by the Minister for Social Protection. If a relevant person has not been appointed by the Minister then the claims may be sent to the Secretary General of the Department of Social Protection. Any payments to be made under this legislation will be made to the relevant person appointed. They will then make the payment to the claimant unless there are particular reasons for the Department of Social Protection to make the payment directly to the claimant. The regulations also revoke the Protection of Employees (Employers’ Insolvency) (Forms and Procedure) Regulations 2005.
18 November 2011 18:10
Practical Tips – When is that contractor actually your employee? Checklist Time!
Due to the current economic climate, people who were previously happy to maintain their status as independent contractors are now seeking to be viewed as employees by the employment law tribunals in order to avail of employment law protection. The distinction between an employee and an independent contractor is of critical importance for both the person providing the services and the company/person using the services. If the services are provided by an independent contractor then the relationship is purely commercial and any termination of the contract can only be disputed as breach of a commercial agreement. This is costly and time consuming as it must be brought to the civil courts and the onus is on the side claiming the breach to prove it.
However if a person can be recognised as an employee rather than an independent contractor then they can potentially take claims for unfair dismissal and redundancy payments and a whole raft of other legislation that is only applicable to employees. Therefore a company considering a services contract must be careful that the relationship is clear from the start and the lines do no become blurred over time.
Leman Solicitors have prepared a check list to help companies when dealing with independent contractors:
Criteria On Whether An Individual Is An Employee
While all of the following factors may not apply, an individual would normally be an employee if he or she:
Criteria On Whether An Individual Is Self-Employed
While all of the following factors may not apply to the job, an individual would normally be self employed if he or she:
While the above is a guide only it is useful in ascertaining if there is potential for a contractor to argue that they are an employee. Companies should be mindful of these issues when dealing with contractors on a day to day basis and when preparing the documents that will govern their relationship with the contractor. Always remember that the situation as a whole will be looked at and not just the tax status of the contractor or the documents in place between the contractor and the company.
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.
18 November 2011 17:52
Services
16 November 2011 15:26
In the aftermath of the property crash in Ireland, many observers anticipated an onslaught of claims against valuers alleging negligence and breach of contract in the valuation of residential and commercial property. To a large extent however, this prediction has not borne out.
The Courts have long been reluctant to allow Claimants to recover against surveyors and valuers in cases involving investment property, which of itself involves inherent risk. The Courts also recognise that property valuation is not an exact science.
These principles are demonstrated in two recent cases from the English Courts:
1. K/S Lincoln and Others –v- CB Richard Ellis Hotels Limited (No. 2) [2010]
This case involved a claim that the Defendant Valuer had over-valued four hotels. The English High Court found that the Defendant was not negligent, notwithstanding that they had used a method of valuation which fell below the standard of care, as the valuation was within an acceptable “margin of error”.
The Court indicated that as a general principle, the permissible margin of error was:
Standard residential Property - +/- 5%
Unusual Property - +/-10%
This case makes clear that the Courts will ultimately focus more on the figures involved, and less on the methodology of the valuation.
2. Emmet Thomas Scullion –v- Bank of Scotland plc [2011]
The English Court of Appeal recently overturned a High Court decision allowing a Buy-to-Let Investor recover against s surveyor who had been retained by the lender.
The Court found that the duty owed by a valuer instructed by a lender to the purchaser in a residential transaction did not extend to a purchaser buying a property for investment purposes. The Court reasoned that property investors are more likely to be able to afford their own valuation and should not be entitled to rely on the lender’s valuation. English case law has confirmed that an ordinary residential purchaser buying a family home can rely on the bank’s valuer.
Another interesting point to note about the case is that the Court seemed to allow recovery for the shortfall in rent between the rental value estimated and the actual rent achievable.
Ireland?
In Ireland no such decisions have been made by the High Court. Remarkably the only action taken to date was the Seán Dunne counterclaim against CBRE in 2009 where he counter claimed that CBRE had overvalued the Hume House property by over €65m. The proceedings were ultimately settled.
Observers suggest that the reason why there has been so few actions against valuers in a country that has suffered the ultimate property bust is because of the close relationships between the banks, developers and valuers where all of them are now reliant on each other in the NAMA led work out.
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.
11 November 2011 16:30
Employment – Submission to the Labour Relations Commission for permanency of University staff on rolling fixed term contracts.
Employment – Drafting of Independent Contractor Agreements for client firm expanding into EU.
09 November 2011 12:57
Rewarding key employees with shares in a company can be an effective and low cost alternative to secure employee commitment. However, companies also need to bear in mind both the commercial pitfalls and the potential tax consequences for employees when establishing any share scheme.
The two primary alternatives when establishing share schemes are to either (i) give the employees the shares up front, but potentially retain the ability to buy those shares back if the employee leaves the company; or (ii) give the employee or a group of employees the option to buy shares in the company at a future date and at a set price (this is commonly referred to as an employee share option plan or ESOP)
In either case, the primary shareholders should ensure that they have the ability to compel the employees to sell their shares in the event of a trade sale. They should also consider whether they are willing to allow employees to have any voting rights and/or any rights to dividend payments by the company. Additional restrictions can also be placed on shares, including the ability to transfer shares and different prices that might paid to employees depending on whether they are "good leavers" or "bad leavers" when they leave the company.
Companies also need to be conscious of the tax consequences for employees under any share scheme. Depending on the structure, employees may become liable for either capital gains tax and/or income tax. This tax may be payable immediately by the employee, and could significantly reduce the take home pay of an employee, which can be an unpleasant surprise! However, with careful planning this impact can be reduced and managed.
Employee share schemes can be very effective and low cost. With some planning, an appropriate scheme can be put in place quickly and efficiently. However, some care is required to avoid potential pitfalls.
Disclaimer
This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Leman Solicitors for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.
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