Contracts involving property are often ‘messy, with obligations on the vendor (and sometimes the purchaser) extending beyond the completion date. This can cause problems when one of the parties fails to fulfil their post-completion obligations, thus causing a breach of contract.

When a contract is breached, the party that suffers form the breach can seek various types of resolution.

Normally, the offended party will seek financial compensation in the form of damages. Alternatively, they may seek an order of the court requiring the other party to do what they have contracted to do (this is called an order for ‘specific performance’ in legal terminology).

If the breach is serious, the aggrieved party may seek to rescind the contract, effectively meaning that the contract is cancelled and they should be restored to the position they were in before the contract was made.

Recently, a purchaser of a warehouse attempted to obtain rescission of the purchase contract because the vendor had not (as agreed in the contract), arranged for the property to be provided with a directly- metered electricity supply. A covenant that he should supply a separately-metered water supply had been complied with.

The court considered that to set aside the whole contract over the failure to provide the electricity supply was not warranted. The purchaser had been able to make use of the building and a claim for damages would provide sufficient compensation.

The courts are not normally  willing to see a contract fail over what might be regarded as relatively minor matters. If you enter into a contract and regard a specific aspect of it as crucial, it is normally possible to have the contract written to reflect this if the other side agrees.

Obtaining registration as a village green of a piece of land used by inhabitants of the neighbourhood offers a considerable degree of protection from the possibility of unwelcome development.

A recent case shows that the type of land for which village green status can be sought is not be confined to ‘traditional’ village greens and similar areas.

The court ruled that a beach could qualify for village green status,based on the definition in the legislation. The application to open up the beach, which had been fenced off for safety purposes in 2008, was lost however: the court ruled that it had always been the case that the beach was part of the working port of Newhaven.

In United States of America v Nolan, the Court of Appeal sought guidance from the European Court of Justice (ECJ) as to the point at which the obligation to consult arises under Directive 98/59/EC – the Collective Redundancies Directive.

The Employment Tribunal and the Employment Appeal Tribunal relied on the decision in UK Coal Mining Ltd. v National Union of Mineworkers that where closure and dismissals are inextricably linked, the duty to consult over the reasons for the closure arises.

The USA appealed on the ground that the more recent judgment of the ECJ in a Swedish case (Akavan Erityisalojen Keskusliitto Alek RY and others v Fujitsu Siemens Computers) is authority for the proposition that the consultation obligation is not triggered by a proposed business decision to close down a workplace but only arises at the later stage when the decision has been made and the intention to make the employees redundant has been formed..

Advocate General Mengozzi has now given his opinion on the matter. In his view, the Directive must be interpreted as meaning that an employer’s obligation to consult with workers’ representatives arises ‘when a strategic or commercial decision which compels him to contemplate or to plan for collective redundancies is made by a body or entity which controls the employer’. It is for the national court to identify, based on the facts of the case, whether such a decision has been made and the date on which it was reached, and thus to identify when the obligation to consult with employees is triggered.

The Advocate General’s opinion is not binding on the ECJ but it is followed in the majority of cases.

This is an important issue as employers need to understand the exact nature of their consultation obligations in such circumstances. We will keep you up to date with any developments.

In the first case, complaints of excessive noise were made and of nuisance and indecent exposure were made. In the second case, the grounds for seeking repossession were noise and arrears of rent.

Both applications for possession were granted after being opposed on the basis that possession by the landlord would breach the provisions guaranteeing respect for family and private life (which includes respect for home life) under Article 8 of the Human Rights Act 1998.

 
The Court stressed that in such cases a balancing exercise must be carried out to weigh up the individual rights of the tenant and the rights of their neighbours.

An employee generally has the right not to be unfairly dismissed by their employer if they have been working for their employer for a minimum period of time. This minimum period of time is known as the ‘qualifying period’.

From 6 April there will be two qualifying periods for the right to claim unfair dismissal. Where an employee’s period of continuous employment begins before 6 April the qualifying period will remain at one year. The qualifying period for employees who start a new job on or after 6 April will, however, be two years.

In addition, the qualifying period for the right to request a written statement of reasons for dismissal increases from one year to two years for employees starting new employment on or after 6 April.

These changes do not affect the ‘day-one rights’ that all employees have. For example, there is no qualifying period of continuous employment for bringing a claim for discrimination or making a public interest disclosure.

Dismissal will automatically be unfair if it is shown that the employee was dismissed for asserting a statutory right or bringing proceedings to enforce such a right. In that case the employee does not have to show any particular length of service. Nor does it matter whether the employee has a good claim for the right. All rights for which a claim can be made to employment tribunal are protected in this way. They include the right to:

• a written statement of employment particulars

• an itemised pay statement

• a minimum notice period

• maternity, paternity or adoption leave

• time off for antenatal care

• parental leave

• time off for dependants

• request flexible working arrangements

• time off for public duties

• protection against unlawful deductions from wages

• refuse to do shop or betting work on a Sunday.

Reference: The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012

A recent dispute over the extent of a right of way over farmland in County Durham may be of interest to property owners, particularly to owners and occupiers of agricultural land.

Farming brothers Colin and John Oliver enjoyed a right of way over land formerly owned by their mother, which included the right to use a track for agricultural and other vehicles as well as on foot, a right which had been granted to allow the men access to their farmland.

The dispute arose over the erection by Mr and Mrs Symons, the present owners of the farmhouse previously occupied by the men’s mother, of a number of gates along the track. The dispute clearly became heated with allegations of pick-up trucks being driven at the gates and forced removal of locks. When the case came to court, it was fought over a number of points but, by the time that it reached the Court of Appeal, the pivotal issue was the extent of the right of way.

In the lower court the judge had found that the right of way was limited to the width of the track itself. It was argued by the Olivers that, whilst the wheel base of any agricultural vehicle using the track must remain within its width, there should be some tolerance for wide loads both in allowing additional ‘swing space’, so that the vehicles could manoeuvre through the gates, and ‘verge space’, where large vehicles using the track were bound to veer onto the grass verge.

The Court of Appeal upheld the decision of the lower court that the right of way did not include any swing or verge space and was limited to the physical width of the track. However, the Olivers’ claims appear to have failed on a lack of evidence. It is therefore possible that in a future case rights of way may be construed as including swing and verge space if sufficient evidence is adduced to support those contentions.

File sharing provided by Swedish website The Pirate Bay (TPB) has been declared unlawful by the High Court, in the first step towards a crackdown on copyright infringement by this popular site.

A group of record companies representing the UK music publishing business are seeking an order for the six main retail Internet service providers (ISPs) – including Sky, BT and Virgin Media – to block the site. The six have a combined market share of some 94% of UK Internet users.

Under UK and European copyright legislation, the courts have powers to issue blocking orders against ISPs for copyright infringement. The music companies want the ISPs to take measures to block – or at least to impede – access by their customers to TPB.

Last July, it was held that the High Court had jurisdiction to make such an order against BT in order to block the site Newzbin. UK and European courts have also declared that there is no requirement to join either TPB or any of its users in such an action. This case does not involve TPB or any of its users, but the ISPs themselves. TPB is currently subject to litigation in other countries.

It was considered disproportionate to join the operators of TPB in the action, as they, having been convicted of criminal copyright offences in the Swedish courts and appealed against the convictions, have since left the jurisdiction of the Swedish courts.

TPB uses a ‘peer-to-peer’ file sharing protocol known as ‘BitTorrent’ that allows a file of any size to be distributed over a number of computers in order to make it quicker to download. Users volunteer to allow their computers to be used for this purpose.

The record companies claim that such action has infringed their rights in a number of sample recordings by firstly copying, and then communicating, the works in question. These works include recordings by Lilly Allen, Noah and the Whale, Scouting for Girls and Plan B. The ISPs were not present at the hearing, stating that it was for the court to decide the matter.

The court held that ‘a user of TPB who selects a torrent file in order to obtain a copy of particular content, and then downloads the associated content files, copies the content contained in those files on his or her computer. It follows that, if the content files comprise a copyright work, and if the user does not have licence of the copyright owner, he or she will be infringing copyright.’

It was further held that the works had been ‘communicated to the public’ by being made available to users who had not bought the recordings from an authorised source. Not only had the operators of TPB communicated the works to the public, they had also authorised the copyright infringement and were jointly liable for any infringement by their users, not least because TPB profits from providing the facilities for such infringement.

In conclusion, the court stated that ‘users and the operators of TPB infringe the copyrights of the Claimants (and those they represent) in the UK’.
 
Remaining questions as to the responsibility of the ISPs to prevent such infringement will be heard in due course.

As a result of an EU Directive, from  March 2013 male and female workers are each entitled to at least 18 weeks’ parental leave until the child reaches a given age up to eight years, to be determined by each Member State. At least one of the four months is to be provided on a non-transferable basis. The Directive also gives parents returning from parental leave the right to request, for a set period of time, changes to their working hours and/or patterns of work, and employers will have to respond to such requests taking into consideration both their own and their employees’ needs.

Whether or not the new Directive will make any difference to the habits of workers with responsibility for children remains to be seen as take-up of the full existing entitlement to unpaid parental leave is still relatively uncommon.

In the aftermath of decisions which have held that showing material obtained by satellite form suppliers outside the UK is not unlawful, Mr Scudamore has indicated that the Premier League may seek to undertake ‘Pan-European’ Licensing.

Currently, the Premier League licences each territory separately, with the result that there is a wide variation in the cost of the service in different countries.

Under the legislation, ISPs are required to issue warning letters to users suspected of online copyright infringement – for example, making use of illegal file-sharing websites. After the third letter in a year, the user will be added to a blacklist, which will be passed to the owners of the copyright. Users who believe they have been wrongly blacklisted will have to pay £20 to defend themselves against the charge.

BT and TalkTalk argued that the legislation as framed constitutes a breach of EU data protection and privacy law and is incompatible with the provisions of the E-Commerce Directive.

The Court of Appeal rejected these arguments. It did rule, however, that ISPs should not be required to pay 25 per cent of the case fees in respect of appeals by subscribers.

The Court’s ruling has been welcomed by the Government and those in the creative industries. It remains to be seen, however, whether the ISPs will appeal to the Supreme Court.

A revised draft Code of Practice under the Act is to be expected in the light of this decision.