Speed Plus: for starting business and supporting business growth

Please note the following Speed Plus opportunities for graduates:

If you know (students graduating this year, graduates from any year, staff or other ‘associates’ of Staffordshire University) who are interested in starting their own business and looking for dedicated support and business grants then apply NOW for the next SpeedPlus intake.

Speed Plus is a business support programme for graduates, alumni and associates of the University which provides, training, mentoring, advice and guidance on any aspect of starting a business, self-employment, freelancing and commissioning. There is also financial assistance for everybody on the programme.

Please find further information on the following link:
(http://www.beinspiredatstaffs.co.uk/home/Speed-plus-business-startup/ ).

Please feel free to forward this to anyone who might be interested in applying. The application closing date is 3rd March 2014.

An application form can be found on the following link, but you can also download it from the website http://www.beinspiredatstaffs.co.uk/home/apply-now/

Interviews for the programme will take place during the week of 7th to 11th April with induction and training being held on 28th, 29th April and 5th May 2014.

Should you require any further information or advice on completing the application form please feel free to contact the BeInspired office below:

Kind Regards,

It only takes one idea, one second in time, one friend, one dream, one leap of faith, to change everything, forever. Just one!……Yet eternity lies in the palm of your hand¬¬¬.
________________________________________________________________________________________
be Inspired Team
Faculty of Business, Education and Law,
Staffordshire University,
K166 The Octagon, Beaconside,
Stafford, ST18 0AD.
01785 353809 Direct | 07825 979278 Mobile
dot@staffs.ac.uk
 www.beinspiredatstaffs.co.uk / www.staffs.ac.uk/business

SPEED Plus is part-funded by the European Regional Development Fund

Speed Plus Business Start-Up Programme.
This programme is aimed at graduates, alumni and associates of the University who wish to start up their own business or freelance. Benefits include: Business consultants, business training, business clubs, networking opportunities and financial support. For more information contact
Dorota Wiernikowska; dot@staffs.ac.uk; 01785 353809; www.beinspiredatstaffs.co.uk

Valuing Consultancy Services: Benedetti v Sawaris revisited

This short note of the appeal in Benedetti, is an attempt to summarise parts of the decision from the extraordinarily learned judgment of Lord Reed, and Lords Clarke and Neuberger, which emphasise the following:

Where ‘Services’ are provided without agreement – regard should be had to Objective market value or market price, at the time of the provision of the service – the value to the recipient of the services is assessed on an objective basis, i.e. the price which a reasonable person in the position of the Defendant would have paid for the Services.

The arguments of the Appellant included whether it should be the value the parties put on the services? Including the late offers by the Defendants, the answer was a decisive no, as Lord Clarke emphasised below:

Lord Clarke at paragraph 30:

‘In the present case it is accepted that Mr Benedetti’s services had an objective value. The issue is whether subjective revaluation can be relied upon, not in order to identify a benefit, but in order to value the benefit so conferred. In my opinion, that is not permissible. Although there is some academic support for such a solution, there is no authority for the proposition that, in cases where a benefit has an objective market value, the Claimant should be entitled to invoke the Defendant’s subject willingness to pay a higher sum for the benefit as reason for valuing the benefit at a higher rate.’

Market value depends critically upon the identification of the relevant market and it is ‘specific to a given place at a given time’. As Lord Reed illustrated using the episode in Vanity Fair – Becky Sharp employing the panic of the British community in Brussels, selling horses prior to rumour of an impending attack by Napoleon (per Lord Reed paragraph 105); Becky obtained a price far in excess of ordinary value. Identification of the market you are in, is perhaps a little paradoxically, an important element in identifying ‘objective’ market value.

Save in exceptional circumstances, the principle of ‘subjective revaluation’ was not recognised; either for identifying a benefit, or for valuing a benefit received. Mr Sawaris made a late offer (i.e. after provision of Services by Mr Benedetti) of €75.1m to Mr Benedetti who he valued highly and wanted to be ‘generous’ to. This late offer, in the absence of contractual agreement, was not to be the high water mark for the enrichment – in addition to the €67 million Mr Benedetti already received for consultancy services.

What lessons can be learnt from the great case of Benedetti?

‘Value’ of consultancy should be governed by an agreement of the parties, by contract, otherwise the Court will have to determine market value – and strive for a measure of objective value. ‘Contract is King’ in all likelihood as Mr Howard, Counsel for Mr Benedetti said in discussion; but if you want to agree value for Services, agree a price.
There was a distinct theme that the Consultant in the case eluded all labels by which a measure for consultancy services could be fixed – was he an investment banker? No. A broker? No, probably not, too limited as a definition. A promoter? Too vague as a definition. This made it (in my view) all too easy for the Defendants to corral the Claimant into a (rough and ready) market rate and reduce the enrichment gained by Mr Sawaris to zero. The Supreme Court upheld judge’s conclusion as to ‘valuation by brokerage’; in the sum of €36.3m. (0.1 to 0.3% of the transaction value). In which case, in light of the fact that Mr Benedetti had already received €67m, he had already achieved, a quantum meruit, ‘as much as he deserved’.

The case (and the judgment of Lord Reed) can be found at:

Click to access UKSC_2011_0087_Judgment.pdf

The helpful Supreme Court Press Summary of the case can be found at:

Click to access UKSC_2011_0087_PressSummary.pdf

IPR Helpdesk Factsheet: Exploitation channels for public research results

Please find attached a link to an article on the available means for exploiting and disseminating research results. The list set out in the article includes Assignment, Licence, Joint Venture, Spin off, Consultancy, and Consortium Agreements.

Strictly speaking, Assignment and Licence (as vehicles for commercialisation and collaboration) require a party to own the Research results in the first place, however all the exploitation channels in the menu can be created by way of agreement between project parties, which makes it a very useful reminder of the list of options.

Click to access Exploitation_channels_for_public_research_results.pdf

Public consultation on the review of EU copyright rules: Protection of rights holders, whilst achieving greater accessibility for scholars and consumers

Public consultation on the review of EU copyright rules – Protection of Rights and achieving accessibility

Click to access consultation-document_en.pdf

Please find attached a short consultation document on the EU copyright legislation. This consultation closes very soon; however it is useful in its discussion of ‘licences for Europe’ including consumer rights to access services, and online services when visiting or travelling in other member states. There is also discussion of the issue of protection of digital content, and licensing of digital works, with the accompanying issue that often in the use of technology, and accessing copyright works on the internet, several copies of the works are made by way of linking and browsing when viewing web pages – which was a subject of a previous blog in the case of Public Relations Consultants Association Ltd Case number C-360/13 – currently on appeal before the Court of Justice of the European Union (as to whether such temporary copies are invariably covered by the mandatory exception for temporary acts of reproduction) provided for in Article 5(1) of the Directive 2001/29/EC.

The Directive 2001/29/EC enables member states to implement national legislation for exceptions to facilitate non-commercial teaching – in Article 5(3)(a). Such exceptions include use by a teacher of parts of entire works to illustrate or teach as part of a course, including newspaper articles. This part of the Directive also includes the right of member states to implement exceptions for non-commercial scientific research. This is also the subject of consultation at page 25 in the attached.

There is also reference to consultation on Article 5(3)(b) of the 2001/29 Directive for persons with disability. The general aim is to further increase the accessibility of copyright works, notably increasing the number of works in special formats and further facilitating distribution. The general aim follows initiatives from the European Trusted Intermediaries Network and the Marrakesh Treaty to Facilitate Access to Published Works (by Visually Impaired Persons and Persons with Print Disabilities) concluded in Marrakesh in June 2013. The treaty creates a mandatory exception to copyright that allows organisations for the blind to produce, distribute and make available accessible format copies to visually impaired persons without the authorisation of the rights holders. The EU and member states are currently working on signature and ratification of this treaty.

Although the consultation process is soon to end, the attached contains numerous reminders that copyright and access to copyright works is still the subject of considerable activity in the EU to ensure protection of rights of creators of copyright works, whilst ensuring where possible the greatest accessibility to their enlightening content. This has been the perennial problem, one would guess, since Caxton and the printing press of Gutenberg.

Judicial Review: R(on the Application of the HS2 Action Alliance Ltd (Appellant) v Secretary of State for Transport

The Judgment expected this morning in the UK Supreme Court on the HS2 Action Alliance has rejected the HS2 Action Alliance appeal. The points of appeal are listed below. The administrative law procedure for judicial review permits parties in this significant case to challenge the reasonableness of the Government’s decision to go ahead with its plans for a high speed rail network; the challenge in this case appearing to be failure to consult during the environmental assessment process. A serious question was as to whether sufficient time has been allowed to assess environmental issues, including assessment by Members of Parliament; and thus parliamentary procedure would fail to meet the requirements of the environmental directive. This point of appeal also appears to have been rejected.

The Facts

The Secretary of State issued a Command paper titled ‘High Speed Rail: Investing in Britain’s Future—Decisions and Next Steps’ (DNS) setting out the government’s strategy for a new national high speed rail network called High Speed Two (HS2) from London to Birmingham, Manchester, and Leeds. The appellants contend that the Decisions and Next Steps (the ‘DNS’) paper is a ‘plan or program’ that is ‘required by administrative provisions’ and ‘sets the framework for development consent’ of HS2 and falls within articles 2 and 3 of Directive 2001/42/EC the Strategic Environmental Assessment Directive (the SEAD) as transposed by the Environmental Assessment of Plans and Programmes Regulations 2004. Justice Ouseley, found at first instance, that the consultation process in respect of the compensation decision was so unfair as to be unlawful. On all other grounds, however, he dismissed the claims, as did the Court of Appeal.

Main points of appeal:

1. Whether plans that may influence the Parliamentary consent process should be effectively excluded from the requirements of strategic environmental assessment by an unduly restrictive interpretation or application of the Strategic Envinronmental Assessment Directive (the SEAD); and contrary to EU environmental law.

2. Whether on the facts the Secretary of State’s ‘Decisions and Next Steps’ (DNS) paper would have a sufficient influence on Parliament to engage the SEAD (the Strategic Environmental Assessment Directive) and whether its very potential to influence Parliament is a compelling factor since, by the time the Bill process is underway, it will too late to challenge the decision in the DNS and provide proof of actual influence;

The writer has not followed the appeal closely, however the Case summary and Judgment issued this morning given its topicality and public importancea are linked below.

Press Summary:

Click to access UKSC_2013_0172_PressSummary.pdf

Judgment:

Click to access UKSC_2013_0172_Judgment.pdf

Court intervention in cases of gross misconduct: Chhabra v West London Mental Health Trust

Please find attached a recent Supreme Court decision regarding the powers of the Courts to intervene in disciplinary hearings for gross misconduct of a medical practitioner. The case involves a secure Hospital serving Psychiatrist, where there was insufficient evidence in the disciplinary proceedings to support wilful or deliberate breach of confidentiality – including allegations of the medical practitioner discussing patient confidential medical notes whilst on a train travelling to work, and the medical notes allegedly in public view during those discussions.

The Supreme Court appears to have upheld the injunction restraining the Trust from proceeding with the disciplinary hearing in breach of contract. The purpose of imposition of the injunction appears to include the opportunity of fresh investigation into the complaints.

The Supreme Court Judgment in Chhabra:

Click to access UKSC_2013_0046_Judgment.pdf

The Press Summary in Chhabra:

Click to access UKSC_2013_0046_PressSummary.pdf

In the Supreme Court UK this week: Disclosure of previous warnings or cautions in a Student’s past and the right to private and family life

In the Supreme Court this week (The Queen on the Application of T v Secretary of the Home Department and others, there was consideration of the thorny issue of disclosure of a person’s past in terms of ‘spent’ criminal convictions; including cautions warnings and reprimands, and in this appeal to minors (persons under 18).

The case is of interest because in the case of one of the Appellants, T, born on 3 May 1991, when aged 11, received two warnings from the police in connection with two stolen bicycles. Although the warnings were in the jargon “stepped down” – in that only the police would retain access to the warning or caution, and not be disclosable to third parties. Nonetheless, when T sought to apply to study at University, the University sought an Enhanced Criminal Record Certificate (ECRC) and received notification of the stepped down warnings. It was apparent that stepping down the cautions and warnings, was not a procedure the police could follow, and they were obliged pursuant to amendments made to the Rehabilitation of Offenders Act 1974, to disclose details of the warnings to the University upon request.

The Court of Appeal decision is attached, containing the full facts of all the combined appeals (with appeals in relation to more serious offences than the alleged theft of two bicycles in the case of T.

It will be helpful to have clarification as to the extent to which a person in a similar situation to T, being minors at the time of offending, making applications into further education, and then into employment would continue to be either required to continue to disclose their own past, or be affected by disclosure of previous offences by third party agencies. The Court of Appeal indicated that in their view such disclosure was disproportionate and in breach of his Article 8 rights (please see the Court of Appeal decision for the wording of Article 8 – right to respect for private and family life), and it remains to be seen whether the Supreme Court would take a similar view.

The facts of the case of T, potentially relevant to those entering in to full time education or employment, with similar past infractions, are set out in the Court of Appeal judgment attached.

Click to access r-t-chief-constable-manchester-judgment-29012013.pdf

Supporting Student Start Ups: Could Universities be more supportive and how?

Please find attached the link to an old(ish) interesting article on the above subject (September 2013) from the Times Educational Supplement.

The article does not explore formal ownership of University intellectual property, including patents, whether developed or created by Students with Universities, or independently. However if the starting point is in relation to Intellectual property formally owned by the University, consideration would need to be given to the policy as to whether it was the intention that the Student owned IP generated during coursework or studies, or whether the University owns it. If the policy was that University owned, we would also need to consider whether the University should formally assign all rights in intellectual property to the Student. These are all well known policy choices; some Universities assert (for themselves) formal ownership of all IP generated by Students, and then in suitable cases assign rights back to the Student; others as a matter of policy start from a base where the Student owns all IP created or developed by them during the period of their studies or coursework.

The picture would inevitably change if there was Course work or research privately funded by external parties, and in cases where the Student has ceased formal studies. It is not clear (to me) whether this is the case in the two examples. In general, it is recommended to work out claims as to ownership on a case by case basis. The article discusses two interesting examples of Student inventors working in the field of fibre optic sensing technology, and secondly in the field of surgical devices. Universities should be able to provide workable legal frameworks for current and former Students in start ups, and the attached article contains two good examples for discussion.

It is true that the preliminary legal framework can be rigid and out of date; but we have to start the discussion somewhere – I recommend the case of Kelly and Chiu v GE Healthcare [2009] EWHC 181, a case involving valuation of contribution to inventions by employees (pursuant to sections 40 and 41 of the Patents Act 1977), Unilever v Shanks [2010] EWCA 1283.

The other elements (whether students or the educational institution formally owns) inventions are often in many circumstances, matters of policy, depending on who had actually made the invention, or contributed to an outstanding benefit. The two attached cases explore the difficult issue of valuing outstanding benefit and contribution of inventions, albeit in the context of the employer/employee relationship. The two valuation cases hopefully mirror the two examples of start ups in the Times Higher Education article.

Times Higher Education Article:

http://www.timeshighereducation.co.uk/news/universities-must-give-more-support-to-student-start-ups/2007678.article

Kelly v Chiu

http://www.bailii.org/ew/cases/EWHC/Patents/2009/181.html

Shanks v Unilever:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2010/1283.html&query=unilever+and+v+and+shanks&method=boolean

Disability and rights of persons with reduced mobility (under EU law) only applicable when on ‘terra firma’?

Today’s case in the Supreme Court (Hook v British Airways; and Stott v Thomas Cook) – listed for one day, is on appeal from the Court of Appeal and involves a joint appeal brought by two disabled persons in respect of claims to injury to feelings and failure to meet seating needs (including those for persons of reduced mobility) pursuant to contractual claims arising at the time of booking of air flights (in the course of international carriage by air). The following facts are taken from the judgment of the Court of Appeal at paragraph 6. The facts in relation to Mr Hook can be found at paragraph 8 of the same judgment attached.

The facts in the appeal of Mr Stott

The Appellant (Mr Stott) is disabled and a permanent wheelchair user. When he travels by air he relies on his wife to assist with his personal needs because he cannot move around the aircraft cabin. He and his wife made a booking with the Respondent to fly from East Midlands Airport to Zante departing on 22 September and returning on 29 September. After making the booking the Appellant spoke to the Respondent by telephone to say that he had booked and paid to sit next to his wife on both flights. On 19 September he telephoned again and was assured that he and his wife would be seated together.

At the check-in for the return flight they were informed that they would not be sitting together. When they protested, a supervisor told them that the problem would be solved at the departure gate, but at the gate they were told that other passengers had already boarded and the seat allocated could not be changed. The Appellant was then seated in an aisle seat in front of his wife. It was very difficult for her to assist with his catheterisation and other personal needs during the flight. No assistance was forthcoming from the cabin crew. At trial, the judge granted a declaration that the Respondent had breached the Appellant’s rights under the EC Disability Regulation, but dismissed the claim for damages by reference to the limits imposed by the Montreal Convention, to which the European Union recognised and was a party. The Court of Appeal dismissed the Appellant’s appeal in relation to damages; see below the final paragraph of Lord Justice Maurice Kay below.

The Montreal Convention of 1999 (‘MC’) provides a uniform code in relation to the carrier’s liability under the contract of carriage by air. The provisions have been interpreted and found to be the exclusive code in regard to this specific liability: passengers being effective barred from seeking reliance on applicable law in their member states. Article 29 states that

‘In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention […]’

Without delving into the case law and the exclusive regime, it appears to be the general position that injury to feelings is not included within the exclusive regime of the Convention, albeit such categories of loss and injury are recognised and compensated under EC law.

EC provisions that do recognise the heads of loss in this appeal

The breaches under EC law brought by the Claimants include the Disability Regulation EC 1107/2006, incorporated into UK law by the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895), notably as regards appropriate seating arrangements. In their defence, British Airways and Thomas Cook seek to rely upon the exclusivity of the Montreal Convention as a comprehensive code, as incorporated into EU law by Regulation (EC) 889/2002.

Giving judgment in the Court of Appeal Maurice Kay LJ found in favour of the airlines on the basis of the exclusive application of Article 29 of the Convention, displacing any other EC applicable law stating at paragraph 54:
‘…I am satisfied that the case for Mr Hook and Mr Stott is unsustainable. The real injuries to their feelings (for which they deserve and have my sympathy) were sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies. Accordingly, their claims for compensation for injury to feelings could not succeed.’

In today’s hearing the Supreme Court, constituted of Baroness Hale and Lords Neuberger, Reed, Hughes and Toulson, will have to consider whether the Montreal Convention can operate to exclude a claim for damages arising from a breach of EU law. This raises several important issues:

– to what extent can the well-established line of exclusivity cases (such as Sidhu) be relied upon in the case of ‘novel’ heads of claim?

– on what basis, if any, can claims under the EU’s Disability Regulation be distinguished from claims under the Passenger Rights Regulation, which have been held to fall outside the scope of the Montreal Convention?

– should the exclusivity of the Montreal Convention be determined by reference to a ‘timeline’ of events (as the Court of Appeal’s judgment seems to suggest), or by the type of damage sustained by passengers (the approach favoured by the CJEU)?

The Secretary of State and the Equality and Human Rights Commission are intervening in today’s case (i.e. will be represented and entitled to make submissions in the appeal).
It is perfectly possible that this case will go further on a reference to the European Court of Justice in light of the core issue of effectiveness of EC law and on the facts, the fact that persons who are intended to benefit from EU laws are left without an effective remedy.

The decision of the Court of Appeal can be found at:

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/66.html&query=stott&method=boolean
A very informative blog on this case (which was used to set out most of the above points) can be found on the Supreme Court blog site at:

Case Preview: Hook v British Airways and Stott v Thomas Cook