Construction Disputes: Is your Pay Less Notice valid?

The Technology and Construction Court considered the validity of an Interim Payment Notice and Pay Less Notice in the case of Surrey and Sussex Healthcare NHS Trust v Logan Construction [2017] [EWHC 17(TCC)]. The service of a Pay Less Notice is well trodden ground but what constitutes a valid Payment or Pay Less Notice has been less clear until this decision.

The facts of the case were that the Claimant, Surrey and Sussex Healthcare NHS Trust, engaged the Defendant contractor, Logan Construction, to refurbish and undertake further works at East Surrey Hospital.

The JCT Intermediate Contract with Contractors Design 2011 applied and on 25 August 2015, practical completion of the works was certified.

Despite the contract permitting Logan to submit Interim Payment Notices, no applications had been submitted.  Further, the Trust had failed to issue an Interim Certificate. On 26 August 2015, the Certificate of Making Good was issued.  This triggered the period for the issue of the Final Certificate and a final account meeting was arranged for 21 September 2015.  The Claimant failed to issue an Interim Certificate on time and the Defendant, on 20 September 2016, emailed a number of attachments to the Claimant which included a spreadsheet containing a work sheet entitled “Interim Payment Notice (Clause 4.10)”.  The document indicated that the Defendant considered there to be over £1,000,000.00 still due to it.

The Claimant issued a Final Certificate indicating that the Defendant was out of time for serving an Interim Payment Notice.  The Final Certificate showed that the balance due to the Defendant was just over £14,000.00.

At adjudication, the Adjudicator was asked to consider whether the Defendant’s Interim Payment Notice was validly served on 20 September 2016 and, if so, whether a valid Pay Less Notice had been served by the Claimant.  The Adjudicator found for Logan Construction on the basis that the Interim Payment Notice of 20 September 2016 was valid and that no Pay Less Notice was issued by 24 September 2016.  The Defendant was therefore ordered to pay over £1,000,000.00.

The Claimant responded by issuing Part 8 proceedings.  Those proceedings sought two declarations which were:-

  1. That the Defendant had not issued a valid Interim Payment Notice;
  2. That the email and attachments that the Claimant sent on 21 September 2016 constituted a valid Pay Less Notice, which was served in time.

The TCC took into account that as the consequences of a failure to serve Pay Less Notice were so severe, it was important that the Defendant was “open and transparent about its intention”.  The TCC decided that both the Interim Payment Notice and the Pay Less Notice were valid.

When giving consideration to the Interim Payment Notice, it found that the spreadsheet served by the Defendant was free from ambiguity and clear as was its substance, form and intent.  It was acknowledged that whilst the covering email did not specifically refer to the Notice being attached, the surrounding circumstances would lead an objective review of the facts that the Defendant was entitled to serve Notice as a result of the contract administrator’s failure to issue an Interim Certificate.  Had the Claimant issued an Interim Certificate after the Certificate of Making Good as contractually required, this position would not have arisen.

Further, the Court considered that the intention of the Claimant in serving its email and attachments was clear to a reasonable recipient and that as a result it held that a valid Pay Less Notice was served.  It was not therefore necessary for the Claimant to expressly state that the email was a Pay Less Notice nor indeed make reference to the contract dealing with this aspect.
The case serves as a reminder that clarity in content and purpose remains vital when addressing all stages of the payment process.  Whilst the Court will look carefully at the intent of the communication, the circumstances surrounding email communication and the service of Notices, the uncertainty generated by a failure to utilise the contractual terms set out in all construction projects can be avoided by clear communication.

 

Gloucester City Council has received a fine from the Information Commissioner’s Office (“ICO”) in the sum of £100,000 further to its employees’ personal sensitive information being unlawfully accessed in a cyber-attack.

In July 2014, a cyber-attacker exploited weaknesses in the Council’s website so as to gain access to and download 30,000 emails. Details of the Council’s employees’ personal information were set out in the same.

The Council were found to have broken data protection law as they left their employees’ sensitive information exposed and vulnerable to attack. This was despite the ICO providing warnings regarding the ‘Heartbleed’ software flaw, which the cyber-attacker abused to access the sensitive data. The Council were therefore found to have failed to rectify and repair the vulnerability within a timely manner.

The Group Enforcement Manager of the ICO, Sally Anne Poole, confirmed “[t]his was a serious oversight on the part of Gloucester City Council. The attack happened when the organisation was outsourcing their IT systems. A lack of oversight of this outsourcing, along with inadequate security measures on sensitive emails, left them vulnerable to an attack.”

The cyber-attacker claimed to be part of a group responsible for cyber-attacks, known as Anonymous. Upon review, the ICO found that the Council did not have the requisite processes in place to prevent such cyber-attackers gaining access. The Council should have ensured its systems had been updated whilst their suppliers were changed.

Sally Anne Poole then went on to say that “[t]he Council should have known that in the wrong hands, this type of sensitive information could cause substantial distress to staff. Business and organisations must understand they need to do everything they can to keep people’s personal information safe and that includes being extra vigilant during periods of change or uncertainty”.

Should you require assistance or have an enquiry regarding data protection please do not hesitate to contact us on 01908 660966 or feel free to email me at christopher.buck@franklins-sols.co.uk.

 

The last few years have seen a step forward in corporate transparency with a requirement to register the beneficial owners of companies on the Register of People with Significant Control (PSC) as well as make statements regarding the Modern Slavery Act.  On 6 April 2017, the reporting on Payment Practices and Performance Regulations 2017 came into force accompanied by the Limited Liability Partnerships (Reporting on Payment to Practices and Performance) Regulations 2017.  Both require all large UK companies and limited liability partnerships to publish, on a government website, detailed reports about their supplier payment policies and practices.

To whom do the Regulations apply?

The definition of a large company is set out in section 465(3) of the Companies Act 2006 and the Regulations refer back to this Act and apply to a company that meets two or more of the following turnover, balance sheet and average number of employees thresholds on both of its previous two balance sheet dates.  The thresholds are:-

The Regulations also apply to companies that both quoted and unquoted. Companies that are part of a group report separately if they meet the above criteria with a parent company only reporting if it qualifies as large company itself under separate thresholds applicable to parent companies.

A company in its first financial year avoids complying with the Regulations but will be caught in its second financial year if it meets two or more of the above criteria on the balance sheet date in the first year.

The types of contracts covered

Companies regulated by this practice will fall into a wide range of sectors as the Regulations apply to all contracts for the supply of goods and/or services with the exception of financial services and contracts that are not significantly connected to the UK.

What information should be reported?

Each relevant business must publish the following information:

How do businesses report?

As of writing, this is sadly not yet clear.  Details of the government’s online portal upon which the reports will need to be uploaded are still to be made available and hopefully can be located quickly following a search of the government websites.

How often should a report be made?

A report should be published twice yearly within 30 days after the end of each reporting period.  The reporting period therefore links to the business’s financial year and are generally the first and second 6 months of each financial year.  Given that businesses do not have much time to prepare the report, ensuring that the information is at hand and can be produced within the 30 day period is critical.

Is it a criminal offence not to comply?

Yes.

Whilst there is a very limited defence for directors based upon what reasonable steps had been taken, breach of this reporting requirement is a criminal offence not only for the company but also its directors.

Further, it is an offence for a person, knowingly or recklessly, to publish a report or make a statement that is misleading, false or deceptive in its content.

What do I do now?

First and foremost, make sure whether these regulations apply to your business.

If they do, preparation is key and the following should be organised :-

  1. Given the personal liability of directors, it is important that all directors are aware of the new legislation.
  2. Put in place practices to obtain this information if the systems currently in place are unable to collate the details.  It is important to start an audit of systems sooner rather than later to see how they may be improved so that the task of reporting can be as simple as possible.
  3. Review any payment practices and implement any internal systems that would assist problems that are identified.  There could potentially be PR mileage in the information being produced and it may be necessary to work with your marketing team to make sure that the messaging is thought through carefully and in advanced any external supplier or media review. This information could also be used as a comparative in a tender process.
  4. Read through the government guidance and regulations as well as checking for the online reporting portal.  The regulations can be located at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/587465/payment-practices-performance-reporting-requirements.pdf

The Regulations have arisen following many years of campaigning by small and medium businesses that have been held to ransom by larger entities whom chose not to pay their suppliers quickly.  The Regulations are here to change this practice and threaten larger businesses with a reputational risk for failing to comply.  The Regulations are a further layer of corporate transparency facing large businesses and with criminal implications for the company and its directors, this is not a regulation to be ignored lightly.

 

 

 

Background

Gordon and Tana Ramsay have been married since 1996. This year, sentences have been given in respect of a hacking plot led by Ramsay’s father-in-law.

Chris Hutcheson Sr. was previously CEO of Gordon Ramsay Holdings Limited. After a falling out, Ramsay sacked Hutcheson and a public row developed. It would appear that this public falling out is the catalyst which led Chris Sr. and his sons to conspire to cause a computer to access programmes and data without consent. Both of his sons had IT roles in Ramsay’s company, which were abused in accessing the data in the way they did.

During the period of 23rd October 2010 and 31 March 2011, Chris conspired with his two sons and hacked Ramsay’s company’s systems nearly 2,000 times. On one day in February 2011, Chris hacked the systems 600 times whilst Adam Hutcheson hacked the systems a further 282 times.

Suspicion was aroused when stories about a “hair transplant” and “fishing trip” emerged. Furthermore, once the hacking had been discovered, Chris sent an email to his son, Chris, saying “Guess we have been rumbled. Bit late though”.

The three admitted to accessing data and programmes without consent. However, one point which Chris Sr.’s lawyer, Michael Borelli, confirmed he did deny was leaking any of the material to the press.

Under the civil proceedings, Ramsay’s father-in-law was ordered to make a payment in excess of £1,000,000 to Ramsay by means of compensation for the data breach and in respect of Ramsay’s legal costs. Chris Sr. was also then responsible for his own legal costs. In addition, under the criminal proceedings, the Judge felt that the monetary penalty was not fully reflective of the seriousness of the crime; hence ordering for Chris Hutcheson Sr. to be jailed for 6 months. Neither Ramsay, nor his wife Tana, supported the criminal prosecution and were not present during the sentencing.

Chris Sr.’s two sons were present during the sentencing and were themselves both given 4 month jail terms, suspended for 2 years. The prosecution had dropped the case against Chris Sr.’s daughter, Orlanda Butland, at an earlier date after her denying any involvement.

The judge described the conspiracy as “unattractive and unedifying”. Despite the findings and sentencing, since the conclusion of the civil proceedings, the families are said to have reconciled.

General Data Protection Rules

From breaching data protection rights both civil and criminal proceedings may arise. The conclusion of this matter coincides with the encouragement for businesses to familiarise themselves with the anticipated implementation of the GDPR in May 2018.

Under the GDPR, data protection rules will become stricter and aimed at further protecting the rights of data subjects.

This previous article provides further information as to how you may begin to prepare for the GDPRƒ??s implementation. https://franklins-sols.co.uk/site/blog/commercial-blog/steps-to-prepare-for-the-general-data-protection-regulation. Alternatively, should you have any additional questions or wish to discuss data protection and your rights or infringement please do not hesitate to contact us on 01908 660966 or feel free to email me at christopher.buck@franklins-sols.co.uk.

In a bid to encourage research into data protection solutions, the Information Commissioner’s Office (“ICO”) is launching a Grants Programme.
Although there is not yet confirmation of exactly how many grants will be awarded each year, it is known that there will be numerous grants varying from a minimum of £20,000 to a maximum of £100,000.

The intentions behind launching the Grants Programme are as follows, to:

  1. “Support and encourage research and privacy enhancing solutions in significant areas of data protection risk, focused on projects that will make a real difference to the UK public;
  2. Increase awareness of privacy enhancing solutions with data controllers across the UK;
  3. Improve understanding of how individuals view privacy issues, interactions with new technologies and promote better public awareness;
  4. Promote uptake and application of research results by relevant stakeholders, including policy makers; and
  5. Develop existing privacy research capacity in academic and not-for-profit sectors.”

The ICO has set out a strategic plan, under which they aim to award grants to organisations who are bidding to achieve the following:

  1. Increase the public’s Trust as to how information is stored and create more confidence in how data is made available;
  2. Through the use of targeted engagement and influence, better the information rights standards;
  3. Develop the maintained influence held in the global information rights regulatory community;
  4. Continue to provide exceptional public service and to develop and progress in accordance with technological developments; and
  5. Continue to enforce the laws as shaped and overseen by the ICO.

The ICO’s plan is reviewed by Information Commissioner, Elizabeth Denham, who made the following statement:

“At the core of our new Information Rights Strategic Plan is the objective of promoting Trust for the public. Current research shows that 75% of the public don’t Trust the way that their personal data is used. I want to see that number reduce and that requires evidence of what is causing the problem and well considered ideas for how to address it.”

In particular, the ICO intends to focus on projects addressing children, the Internet and their privacy rights. There is also focus on the privacy implications of new technologies and the challenges brought about by the same.

Should you have any queries or wish to receive further advice in relation to data protection please contact us on 01908 660966 or send us a message via our online service.

 

 

The snap election, called by Theresa May so soon after recent other elections and referendums, was not a popular decision amongst voters and the other political parties. For the Liberal Democrats however, it represented an opportunity to quickly regroup after a disastrous 2015 election. Whilst Tim Farron has been slow to confirm his opinions on some topics, we analyse the Liberal Democrats’ manifesto on employment law changes to see if the party has a clear vision.

1. Ban Zero Hours Contracts –  Labour 2015, 2017

In 2015, the Lib Dems wanted to create, “a formal right to request a fixed contract and have a consultation on the introduction of a right to make regular patterns of work contractual after a “period of time””. Now, they want to ban zero-hours contracts completely, perhaps inspired by that same pledge made by Labour in 2015 (and repeated in 2017).

2. Encourage the creation and widespread adoption of a ‘good employer’ kitemark – New

On the surface, this is quite an interesting concept; creating a ‘quality mark’ amongst employers covering areas such as paying a living wage, avoiding unpaid internships and using name-blind recruitment to make it easier for customers and investors to exercise choice and influence. In reality, a number of these quality marks exist already; for example, the Living Wage Foundation already offers a ‘Living Wage Employer Mark’. In addition, thanks to social media, it is quite easy for employers, consumers and the wider public to make an initial assessment of an employer.

3. Larger employers to publish the number of people paid less than the Living Wage and the ratio between top and median pay – Basically the same as 2015

This is the same as the 2015 manifesto, although less specific. In 2015, the Liberal Democrats wanted, “companies with more than 250 employees to publish details of the different pay levels of men and women. By 2020, they will require those companies to also publish the number of people paid less than the Living Wage and the ratio between top and median pay.”.

4. Scrapping employment tribunal fees – Stronger stance than 2015, same as Labour in 2015 and 2017

In addition to zero hour contracts, one area where the Liberal Democrats have strengthened their resolve is in relation to employment tribunal fees. Previously, in 2015, they wanted to,  “Review employment tribunal fees to ensure they are not a barrier”. Now, they want them to be banned outright to ensure access to justice for all. This is the same stance Labour took in 2015 and again in 2017.

5. Employee decision-making within listed companies – New

This comes in two parts:

The focus here appears to be on worker-cooperative business, such as the John Lewis group, with a view to tackling some voter concerns over executive pay rates.

6. Establish an independent review to consult on how to set a genuine Living Wage across all sectors – Similar to 2015

The Living Wage Foundation, an independent organisation, currently reviews and provides guidance as to the ‘real’ living wage that people need in order to be able to reasonably survive. The Lib Dem’s manifesto pledge suggests that it intends to conduct its own review. They have been consistent with their views on the Living Wage, pledging in the 2015 manifesto to, “Pay the Living Wage in all central government departments and their agencies from April 2016″.

7. Modernise employment rights to make them fit for the age of the ‘gig’ economy – New

No specifics have been given on this and it strikes this writer as an attempt to make some mention of this hot topic (following the recent Uber case decision). It is therefore very difficult to make an assessment as to what this actually means.

Overall, the Liberal Democrats’ manifesto does not offer many new specific employment-law ideas; many of its pledges are lacking in specific detail, although it has maintained a consistent stance on most issues since the 2015 manifesto. Like the 2015 manifesto, these current pledges are slightly vague in some of its promises so, if history is to repeat itself, this upcoming election may not be the one to restore the party to its 57 MPs in 2015.

 

 

 

 

 

Following the trademarks granted for David Beckham in 2000 and Victoria Beckham in 2002, Victoria has now trademarked the four Beckham children’s names: namely Brooklyn Beckham, Romeo Beckham, Cruz Beckham and Harper Beckham in the U.K. and Europe.

Further to Victoria filing the application on 22nd December of last year, she now (as the children’s parent and guardian) holds the right to use the trademarked names in the U.K. and Europe. The trademarks can be used on products varying from dolls to beauty products.

By registering their names as trademarks, Victoria has prevented anyone else in the music, film or TV industries from referring to themselves under the children’s names. She has also protected the names from being used by anyone else, without consent.

Legal experts have commented that it is a good move in obtaining a trademark before the individual becomes too famous as it is much easier to do. It then only allows others to use the trademarked name with the consent of Victoria Beckham, as and when that may be provided. Some experts are heard to have made comments that registering, Harper in particulars name (as she is only age 5) is unprecedented.

Despite the fact that Harper especially is very young, in protecting the children’s names by registering them as trademarks, some lawyers have been said to see Victoria’s “future-proofing” as a sensible and protective step. This is especially true when you consider the continuous development and progression of social media, often most frequently noted regarding the exposure of celebrities.

Trademarks

Should you require legal assistance in relation to understanding or obtaining trade marks, our intellectual property specialists would be delighted to assist.

A trade mark is a registerable way of traders identifying their goods and distinguishing them from others. They are often also referred to as a brand.

A trade mark can vary from a brand name, to a logo or slogan, all of which can be registered and protected from being used by another third party without consent.

The benefits of registering a trade mark, although it is a voluntary process, are the protection it provides, the exploitability of the brand and also the discouragement of others from copying or breaching the right.

If you have been considering applying for a trademark and require assistance, or if you would like further information in relation to both registered and unregistered trademarks please feel free to contact me, or one of our team on 01908 660 966.

Recently, Disney has taken to investing in studios so as to produce successful franchises. After attempts at setting up franchises, such as a sci-fi franchise with John Carter, Disney appear to instead be looking to invest in already developed and successful franchises, including buying the Star Wars franchise from LucasFilm.

Despite success in developing the business, Disney is currently facing a copyright claim by the writer of Total Recall, Gary L Goldman, in relation to Disney’s Zootopia, which was the fourth-highest grossing film of 2016.

Goldman is claiming that he put forward the idea for Zootopia on two occasions (2009 and 2010), both of which were rejected by Disney. Now, he suggests that instead of working with him on the franchise, Disney have instead copied his work to develop the Oscar-winning Zootopia.
Zootopia’s director, Byron Howard, is reported by the claimant to have said: “Don’t worry if you feel like you’re copying something, because if it comes through you, it’s going to filter through you and you’re going to bring your own unique perspective to it”, thus forming a further part of Goldman’s claim.

Goldman’s complaint goes on to detail how Disney have copied a multitude of his ideas, ranging from characters, their conversations and interactions and also the themes presented in the animated picture. There are also allegations of copying the artwork and designs created by Goldman to be used for the characters and the name of the franchise itself, Zootopia.

An example of copied work was the line “If you want to be an elephant, you can be an elephant” to be said by one of the characters as written by Goldman. In Disney’s Zootopia, a character presents this very similar line: “You want to be an elephant when you grow up, you be an elephant”.

In response to Goldman’s claims, Disney have replied stating that: “Mr. Goldman’s lawsuit is riddled with patently false allegations. It is an unprincipled attempt to lay claim to a successful film he didn’t create, and we will vigorously defend against it in court.”

There have not been any figures presently released in relation to Goldman’s claim, it appears to be for unspecified damages. However, on the basis that Zootopia has grossed over a massive £820 million (not including sales of all merchandise), if Disney are found to have copied the ideas and works of Goldman, they could be footed with a hefty bill.

Expert advice

It is always worth considering what, if any, implications may arise from any adverse reactions actions you are looking to take. Whether that be looking to develop works without infringing the rights of the original material, or protecting your own original material from infringement.

If you would like further information in relation to copyright matters, whether that be protecting your own interests or ensuring you are not breaching the rights of others, our experienced Intellectual Property team would be delighted to assist.

Couple in front of a solicitor

Separation can be a daunting process. Even more so when there are decisions to be made about finances and future arrangements for children. But Court proceedings aren’t the only route…

The alternatives to Court

Many people think protracted Court proceedings are the only way to reach a settlement, but that’s not always the case. It’s a financially and emotionally expensive route to go down, and has an inherent risk – there’s no guarantee it will go in your favour.

There are many cost effective and easy ways to make those all-important decisions and agree on what’s best for you and your family outside of the Courts.

The collaborative route

The collaborative process is used to resolve financial issues and involves you and your former partner each appointing a collaboratively trained lawyer to assist you throughout the process.

To begin with, you and your former partner will each separately meet your appointed collaborative lawyers and discuss what matters you’d like to resolve. Your legal representatives will then arrange a mutually convenient time for you all to meet and discuss the best way forward. These meetings are usually referred to as ‘round table meetings’ or ‘four-way meetings’.

At the start of the process, you and your former partner and your respective representatives, will all sign an agreement to show you’re all willing to commit to coming to an agreement without the need for Court. During the meetings, you’ll discuss each of your concerns and your representatives will advise on how best to come to an agreement that works for both of you.

Once an agreement has been made, a document detailing the agreement will be drawn up and signed by all parties. Your representative will then discuss what else needs to be done in order to implement the agreement.

One downside is that if the collaborative process breaks down and Court proceedings start, your collaborative lawyer won’t be able to represent you, so you’d need to appoint a new solicitor.

The mediation route

Mediation is a process which involves you and your former partner meeting with a trained mediator to discuss your issues around the separation, including your finances and children.

Your solicitor can refer you to a mediator or you can find one yourself. Before the process starts, the mediator will meet with both you and your former partner to make sure that mediation is the right choice for you.

Mediators are non-biased during the meetings and can’t give you advice, however they can help you to come to an agreement on any issues you have. The key to mediation is communication and compromise.

Once the process is finished and an agreement has been reached, your mediator will draft this into a Memorandum of Understanding. Your solicitor can then use this to make the agreement you’ve reached legally binding.

The arbitration route

Arbitration is for financial matters. It’s similar to the Court process, but it’s often a faster and more cost-effective approach. You’ll be able to choose your arbitrator who will look at both you and your former partner’s positions, plus any evidence such as financial information. Depending on the case itself, there may be a need to have a preliminary or Final Hearing, but it’s possible for these to be dealt with on paper, rather than a face-to-face hearing.

After a decision has been reached, the arbitrator will give a ruling called an award, which will be binding.

During the arbitration process, you can still be represented by your solicitor who will support you throughout the process.

We’re great Advocates of Alternative Dispute Resolution and will always try and assist you in finding the most cost effective method of resolution. Please contact our family team to discuss your options on 01908 660966 or 01604 828282 for a confidential conversation on how we can help..

Image courtesy of 123rf.com.

Getting your advertising on point

Advertising goes hand in hand with any business. So when it comes to promoting your products or services, it’s important to get it right. Associate Partner, Christopher Buck, explains what you need to think about before you target your audience…

Advertising: the risks

Apart from damage to reputation and potential loss of trade when you promote your business, you should also be aware of the litigation risks that can arise out of unfounded claims and false advertisements.

Some footwear manufacturers have previously advertised using expressions that claimed their shoes had positive health effects. Others have made claims that their shoes would help people to lose weight. Where these claims have been unfounded, the manufacturer has been ordered to refund their customers.

Advertising: the rules

Such unfounded claims go against the UK Code of Non-broadcast Advertising, and Direct & Promotional Marketing (the ‘CAP Code’). Rule 1 of the CAP Code outlines: “the central principle for all marketing communications is that they should be legal, decent, honest and truthful.” By advertising that their shoes provide health benefits that they do not, manufacturers have been found not to have been truthful to potential and actual customers.

When you’re planning an advertising campaign, you need to think about your responsibility to consumers and society. You should also respect the principles of fair competition, which are generally accepted in business. Customers buying shoes that are advertised as having health benefits expect to see and experience such benefits. So it’s your responsibility to make sure your consumer is given the right information.

Rule 3 of the CAP Code goes on to state that advertisements shouldn’t be mislead by inaccuracy, ambiguity, exaggeration or otherwise. It’s your responsibility as the advertiser to hold documents as evidence, which can substantiate any claims made by them before your advert is published. Any claims regarding health benefits that are found to be inaccurate and mislead customers who may not have otherwise bought your product are in breach of the CAP Code and liable to complaints and refunds.

The Advertising Standards Authority

Advertisements are also importantly self-regulated and governed by the Advertising Standards Authority (‘ASA’). New adverts don’t have to pass’ an ASA clearance, but complaints, such as for unfounded health benefits from wearing a type of shoe, can be made to ASA regarding the nature or content of an advert.

ASA isn’t bound by the guidance provided by the CAP Code and as a result may uphold complaints which, under the CAP Code, would otherwise be deemed as compliant. These decisions are then often reflected on in published guidance on the CAP Code to provide as up-to-date direction as possible.

Advertising: How to comply

To comply with advertising regulations, you should consider the following:

  1. Take initial, and continued, advice regarding copying
  2. Be sure your advertisement accurately reflects what is being advertised – your advert should fit the product, not necessarily vice versa
  3. Ensure your advert isn’t misleading as an ASA complaint may be upheld even if it has only been made by one person.

You should also avoid:

  1. Adverts which are misleading as to the qualities and properties of goods and services
  2. Competitive adverts, which overly criticise a competitor with no fair reason
  3. Making unfair comparisons – these should only be made with products that are like for like
  4. Making pricing errors
  5. Infringing the intellectual property rights of another trader.

With all this in mind, your business should review each and every advert in its entirety, consider all claims and their accuracy, and ensure they’re not misleading potential customers, or allowing them to be misled.

If you’d like further information about advertising, please contact me on 01908 660966 or email me on christopher.buck@franklins-sols.co.uk.

Image courtesy of 123rf.com.

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