Search and find what you need faster.

Changes to the obligation to inform and consult on TUPE transfers

Posted on: July 1st, 2024 by Natasha Cox

Changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) come into effect on 1 July 2024.

These changes are likely to be welcomed by small to medium-sized businesses as they provide greater flexibility to employers in complying with their duty to inform and consult affected employees in relation to a TUPE transfer.

A business preparing for the sale of part or all of an undertaking or service provision can now consult directly with affected employees if:
– there are no recognised trade union or employee representatives AND
– the employer has not already invited the affected employees to elect representatives AND
– either the employer has fewer than 50 employees OR
– fewer than 10 employees will transfer.

There is nothing to prevent an employer in either scenario from arranging an election to vote for employee representatives if this is preferred.

Please get in touch if you require any advice as to how to get the process right for your business. A failure to do so can be costly: transferors and transferees are jointly liable for any breach of the duty to inform and consult. This could result in protective awards reaching as high as 13 weeks’ gross pay for each affected employee.

Lawrence Stephens advises Mario Silva on first promotional deal with Boxxer

Posted on: June 25th, 2024 by Natasha Cox

The Sports & Entertainment team, led by Angelique Richardson, has advised professional boxer, Mario Silva, together with Merah Vodianova and Elliott Amoakoh of Nova Sport Group, on Mario’s first promotional deal with Boxxer.

Silva, with a current record of 5-0, is one of the youngest fighters in Boxxer’s stable at only 21, and is looking to be the next greatest middleweight of the generation. Mario will make his debut with Boxxer on 3 August 2024 on the Chelli v Simpson undercard at Oakwell Stadium, Barnsley.

Commenting on the deal, Mario said “I’m ready. Nova and Angelique have changed my life getting this deal over the line. I’m one step closer to my purpose and mission in this life”.

Angelique said: “This deal is life-changing for Mario – I’m thrilled to have advised him and Nova on this deal and we’re all really excited to see what Mario can bring to the middleweight division.”

William Bowyer discusses the importance of protecting athletes’ image rights in Law360

Posted on: June 18th, 2024 by Natasha Cox

Associate William Bowyer discusses athletes’ image rights following an award of €200,000 to the family of former Formula One champion Michael Schumacher, over publication of an AI-generated interview of him in Die Aktuelle magazine, in Law360.

Will’s article was published in Law360, 14 June 2024.

—————————————————————————

F1 driver AI case sheds light on winning tactics in IP suits

Athletes should ensure they protect their image, both via the contracts they enter into, such as sponsorship and broadcast deals, as well as by monitoring use of their image online. This will require considerable tenacity given that an uploaded image generated by artificial intelligence can suddenly go viral.

In this context, a decision by a Munich Labor Court to award €200,000 ($216,215) to the family of former Formula One champion, Michael Schumacher, which was reported in May[1] could set a precedent for athletes in image rights cases.

Although the circumstances of this case were highly unusual, given Schumacher’s profile and the nature of the interview in the article, the controversy over presenting quotes generated by AI as a genuine interview with Schumacher indicates that publishers cannot simply take advantage of the latest technology to behave less responsibly.

Indeed, the admission by publisher, Funke Mediengruppe that the April 2023 article in Die Aktuelle magazine was “tasteless and misleading”[2] indicates that athletes remain in a strong position when it comes to protecting their image and reputation.

Instead of encouraging media outlets to be ever more cavalier, this case implies that positive outcomes for sports personalities who take an aggressive and proactive approach remain achieveable.

The Schumacher case has opened the door for a wave of issues surrounding circumstances where third parties misuse image rights or create digital representations of real people without their authority.

In this particular example, the facts of the case indicate brazen misrepresentation on the part of Die Aktuelle. On the front cover of the edition in question, the headline ‘Michael Schumacher, the first interview!’ ran next to a photograph of the celebrity.

The magazine also wrote that “it sounds deceptively real”, with supposed, AI-generated quotes attributed to Schumacher. Only when reading the article on the inside pages did it become clear that the quotes had been produced by an AI tool.

Schumacher, the winner of seven F1 titles, has not been seen in public since being in an induced coma after suffering severe head injuries in a skiing accident in December 2013. The headline, which blatantly misrepresented reality, was obviously a ploy designed to attract maximum attention to potential readers not looking beyond the front cover.

Two days after publication, the magazine’s editor-in-chief Anne Hoffmann, who had held journalistic responsibility for the paper since 2009, was sacked and Bianca Pohlmann, managing director of Funke media group, apologised to Schumacher’s family.

Schumacher’s family was able to use Funke’s admission of responsibility and poor judgment against the publisher to reach a settlement, along with the fact that they wanted to reduce the public attention on this case as much as possible.

The battle between celebrities or brands and imitators is by no means a new phenomenon, and athletes and sports personalities work hard to protect the intellectual property and brand in their image, voice and likeness.

For instance, in February 2024, French football star Kylian Mbappé applied to European Union Intellectual Property Office to register a black and white logo depicting his crossed-arms celebration as a trademark[3] for  clothing, footwear, games, sports equipment, accessories, luggage, and printed matter such as books and magazines.

In doing so, he followed a path pioneered by his former Paris Saint Germain teammate Lionel Messi. Messi, who set the precedent, was engaged in a nine-year legal battle before the European Court of Justice finally approved his registration in September 2020 of an EU-wide trademark for a logo consisting of his name and a stylized letter ‘M’[4].

Seeking to monetise their image and using the law to proactively build their brand, Mbappé’s move is part of a wider trend by sports stars and celebrities to protect IP rights relating to their signatures, names, and other personal characteristics. Trademarking a logo, symbol, name or other similar mark grants these owners a monopoly right over their IP assets and helps to stop third parties from using their image without consent or payment.

While athletes have looked to the law to protect their brand and visual identity from copycats, the boom of generative AI has led to a slew of legal claims surrounding IP. Globally, lawyers are already seeing a rise in AI-related litigation surrounding image rights, and the German court’s decision will no doubt add to the momentum.

Another case, which could set a legal precedent in the UK, is the dispute between Getty Images and Stability AI[5], a London-based AI developer, which was filed in June 2023 and is currently pending trial before the High Court of Justice of England and Wales.

Getty claims that Stability AI is responsible for infringing its IP rights through the development of its Stable Diffusion system, which automatically generates images based on text or image prompts input by users. It argues that the synthetic images generated by AI in this instance reproduce in substantial part its copyrighted works.

Separately, in January 2023, a group of artists filed a claim against Stability AI in the U.S. District Court for the Northern District of California after one of them discovered that over 50 pieces of her artwork had been uploaded to LAION[6], a data set which feeds artificial intelligence image generators including Stable Diffusion.

The EU AI Act[7], which has been at the vanguard of legislation racing to catch up with the technology, proposes that AI tools will have to disclose any copyrighted material used to train their systems. As AI becomes more embedded into the workstreams of both online and print publications, it is likely that many more of these cases will occur.

While you cannot use someone’s image without their consent to sell or promote goods or services under both UK and EU IP law, there are exceptions when reporting the news. In the Schumacher case, however, Die Aktuelle were representing that the interview was both genuine and endorsed by his family in an attempt to sell their magazine.

Many well-known figures have already found their reputations damaged by such AI-generated images, which are so convincing that they are widely shared online – a scenario that athletes and their representatives will need to be ready to counter robustly.

Despite the general uncertainty that the widespread use of AI brings to image rights, the Schumacher case rightly shows a trend towards how athletes are looking to the law to protect their brand, enabling them to place themselves in pole position in image rights cases.

 

[1] https://www.bbc.co.uk/sport/formula1/articles/cd1176240lko.

[2] https://news.sky.com/story/michael-schumachers-family-win-legal-case-over-tasteless-ai-generated-interview-in-german-tabloid-die-aktuelle-13141870.

[3] https://euipo.europa.eu/eSearch/#details/trademarks/018984428

[4] C-449/18 P EUIPO v Messi Cuccittini and C-474/18 P J.M.-E.V. e hijos v Messi Cuccittini

[5] Getty Images v Stability AI [2023] EWHC 3090 (Ch)

[6] Andersen v. Stability AI Ltd., 23-cv-00201-WHO

[7] https://digital-strategy.ec.europa.eu/en/policies/regulatory-framework-ai

 

 

 

 

 

 

Lawrence Stephens has advised the shareholders of M&A Coachworks on the sale of their business to The Steer Group, one of the industry’s leading automotive repair groups

Posted on: June 5th, 2024 by Yvonne Uzoka

M&A Coachworks is a supercar, manufacturer-approved repair specialist for iconic luxury brands such as Porsche, Ferrari, Aston Martin, Bentley, Lamborghini, McLaren and Maserati. Established in 1971, the company has four bodyshop sites in London, Norwich, Hertfordshire and Berkshire. It offers vehicle repairs, restorations and transport collection for client’s prestige vehicles. 

The strategic acquisition of what was the UK’s largest manufacturer recommended repairer of super cars bolsters Steer’s capabilities in the luxury vehicle repair sector through expanding its repair footprint and increasing its capacity.

No stranger to the sector, this deal follows an earlier transaction where the Lawrence Stephens team advised the shareholders of the Artis Group, a vehicle repair business with 11 outlets located around the M25 on their sale to The Steer Group.

M&A Coachworks is also a family-owned business, established by Brothers Michael Dionisiou and Adonis Kyriacou in 1971. A founder-led business itself, Lawrence Stephens is very familiar with the challenges this brings and advises many privately owned businesses on a wide range of matters throughout the business lifecycle.

The Lawrence Stephens team was led by Managing Director  Steven Bernstein, with assistance on the corporate side from Associates Harshita Samani and Carla Bernstein  and Trainee solicitor Heather Ramsey and on the property side from Director Nick Marshall.

12-month bridge loan secured for Blue Shield Capital

Posted on: June 4th, 2024 by Natasha Cox

We are pleased to share with you that we have acted on a £6 million loan for our clients Blue Shield Capital on the refinance of three stabilised, income-producing residential assets.

This £6 million facility will allow the borrower to facilitate a restructure of their group operations and refinance some of their property portfolio in order to expand their business.

Ajoy Bose-Mallick Director and Head of Banking led the team with assistance from Senior Associate Ashley Wright & trainee Alex Ruder on banking and Paul Marsh Director on real estate.

Commenting on this transaction, Ajoy Bose-Mallick said “we have completed on another important funding facility for our clients which will expand their loan book and showcase their ability to fund larger complex transactions. Again this deal highlighted the Banking and Real Estate Finance team working seamlessly together to deliver on a successful completion for our clients.”    

Triple shortlisting for Claire Allan and the Lawrence Stephens’ Leasehold Enfranchisement team

Posted on: May 30th, 2024 by Natasha Cox

Now into its 15th year, the annual Enfranchisement and Rights to Manage Awards has evolved into a prominent event, recognising excellence in the leasehold enfranchisement and right to manage sector.  The eminent and independent judging panel has reviewed all the submissions made and they have now revealed the final shortlist.  This peer-reviewed judging process ensures independent quality in the decision-making. 

As well as the firm being shortlisted in the Solicitors Firm of the Year category, Director and Head of Leasehold Enfranchisement Claire Allan has been personally shortlisted in the Solicitor of the Year and Professional of the Year categories. This triple shortlisting acknowledges Claire and her team’s expertise in advising leaseholders and landlords in this complex field, navigating them through the statutory lease extension or collective enfranchisement process.

Claire’s arrival at the firm has brought together and given focus to work already being undertaken by others through formally establishing the firm’s Leasehold Enfranchisement department. Client feedback confirms the benefit of the enhanced perspective gained by the team through experience of and acting for freeholders, head landlords and tenants.

Claire is actively involved in the real estate market and an active participant in a number of initiatives, including raising awareness of issues identified in the proposed leasehold reform amendments. She mentors and guides less experienced members of the team and more widely through her involvement in industry organisations.

As a consequence of her energy and enthusiasm, the scale and complexity of cases undertaken by her team has increased markedly. Examples include acting for the landlords of a number of West London mansion blocks, head landlords where the freeholder is a significant landed estate, and acting for the tenants on a mid-sized complex collective claim in Covent Garden against a multinational PLC.

The winners will be announced at the awards dinner on 11 July at the Leonardo Royal Hotel, near St Paul’s in London.

Successful completion of another significant funding facility for Blue Shield Capital

Posted on: May 30th, 2024 by Natasha Cox

We are thrilled to announce the successful completion of another significant funding facility for Blue Shield Capital.

This £8.8 million facility supported the acquisition of a prime £11 million mixed-use site, featuring office spaces and a Premier Inn hotel, arranged over ground and five upper floors.

The transaction was carefully and painstakingly negotiated up to the deadline, with our dedicated banking and real estate teams showcasing incredible expertise and commitment to bring this deal to a successful close.

Ajoy Bose-Mallick Director and Head of Banking led the team with assistance from Senior Associate Ashley Wright & trainee Alex Ruder on banking and Paul Marsh Director and Rachel Coulthard Senior Associate on real estate.

Commenting on this transaction, Ajoy Bose-Mallick said “this highlights our firm’s capability to call upon its cross-departmental expertise under tight deadlines and the combined team’s dedication and expertise were instrumental in navigating the complexities of this high value transaction, ultimately securing a successful outcome for the Blue Shield Capital loan and a successful acquisition for the borrower.”

Government rejects ban on NDAs in sexual harassment cases

Posted on: May 20th, 2024 by Natasha Cox

In March 2024, the Treasury Select Committee delivered its’ report entitled ‘Sexism in the City’. As part of the enquiry, the committee found a ‘shocking’ prevalence of sexism and misogyny towards women working in financial services, and recommended a total ban on the use of non-disclosure agreements (NDAs) and clauses in all harassment cases.

In its response to the Select Committee’s recommendations, the UK government has now pushed back against a move to ban NDAs, saying that they would already ‘most likely’ be unenforceable when reporting a crime to the police. In the Government’s opinion the law therefore does not need to go any further.

As part of the rationale for this decision, the government said, “When it comes to sexual harassment and discrimination, it is important to recognise that individual circumstances vary. The government consultation on ‘Confidentiality clauses: measures to prevent misuse in situations of workplace harassment or discrimination’ in 2019 also heard evidence that many employees who sign a settlement agreement at the end of their employment with an organisation value the inclusion of confidentiality clauses, as they allow them to move on and make a clear break.” It added that an NDA would also be unenforceable if it sought to prevent a worker making a protected disclosure about wrongdoing to a prescribed person for whistleblowing purposes.

This move means that employers will be able to continue using NDAs in most common situations where a crime is not involved. It is important to remember, however, that other laws and guidance already exist on how NDAs should be used. These include  best practice guidance from the Equality and Human Rights Commission and Acas guidance for employers, as well as the Solicitors Regulation Authority’s warning notice on NDAs. In addition, all employers regulated by the Financial Conduct Authority must include a clause in any NDA making it clear that it does not prevent a protected disclosure.

Get in touch if you require further guidance on the use of NDAs in relation to allegations of harassment by employees.

JCT Design and Build Contract 2024 – the first in the next generation of building contracts

Posted on: May 17th, 2024 by Natasha Cox

The JCT 2024 Design and Build Contract (JCT DB 2024) represents the first major update of the JCT forms since 2016.  The underlying structure has not changed, but the JCT has taken the opportunity for a comprehensive refresh of the JCT DB main contract and sub-contract forms.

A number of changes have been made, including the following:

New Relevant Events:  For the first time, JCT DB 2024 expressly entitles the Contractor to an extension of time if practical completion is delayed by:

  • a shortage of labour, services or materials caused by an epidemic which first occurs after the Base Date or whose effects change after the Base Date – this is the JCT’s considered response to the Covid-19 pandemic; or
  • a change in primary or secondary legislation or in guidance published by the government or other specified bodies which affects the execution of the Works – this would, for example, capture guidance by the Construction Leadership Council which is not legally binding.

While the principles seem fair, the new Relevant Events are broad in scope and we anticipate that many employers will seek to exclude them or limit their scope by making appropriate amendments. 

New optional Relevant Matters:  To complement each of the new Relevant Events noted above, there is an option in the Contract Particulars for an equivalent Relevant Matter. This would entitle the Contractor to recover the loss and/or expense it as a result of these events.  

We expect that a compromise position will be agreed in many cases allowing the new Relevant Events to apply (albeit perhaps with amendments to limit their scope), but not the optional Relevant Matters.

Termination:  If the relevant events/matters described above cause the works (or substantially the whole of the uncompleted works) to be suspended for a longer period than that identified in the Contract Particulars (the default period being two months), this is potentially grounds for termination by either party.  It is safe to assume that, had this provision been included in the JCT 2016 suite, the consequences of the Covid-19 pandemic would have been much harder for developers and their funders to manage.

Other changes have been made which impact on the parties’ rights to terminate, including the extension of the definition of insolvency. Changes have also been made to the provisions relating to payment on termination, reflecting the not so recent Construction Act notice requirements.

Limitation of the Contractor’s design liability: clause 2.17 has been comprehensively redrafted to make it clear that the Contractor has no greater duty in relation to design (to the extent permitted by the Statutory Requirements) than to exercise reasonable skill and care.   To drive the point home, there is an express exclusion of any obligation that the Contractor’s design must be fit for purpose.  While this was undoubtedly the intention behind the 2016 edition, employers and their advisory teams will no doubt look to close the gap between ‘reasonable skill and care’ and fitness for purpose without losing the benefit of the Contractor’s PI insurance which will not cover unqualified fitness for purpose liability.

Extension of time and liquidated damages:  Detailed changes have been made to the liquidated damages regime (reflecting recent case-law) and the timescales which apply to the extension of time procedure. 

Other changes: Provisions relating to collaborative working, sustainable development and environmental considerations, and the notification and negotiation of disputes have now been elevated into the core Articles and Conditions.  These were previously optional supplemental provisions so these changes represent an evolution of the JCT form rather than being radical changes.  

Various other detailed changes have been made and we recommend that users of the form purchase the tracked change versions published by the JCT to accompany the new forms which shows the changes in redline.

Template schedules of amendments need to be updated to address the changes in the JCT DB 2024 forms.

At Lawrence Stephens, our Construction & Development Finance team can advise on how best to navigate and use this new suite of contracts. 

Please contact Tom Pemberton if you have any questions regarding your project or the JCT forms.

Lawrence Stephens advises Blue Shield Capital on £25million facility loan

Posted on: May 17th, 2024 by Yvonne Uzoka

Lawrence Stephens’ Banking team recently advised Blue Shield Capital on a £25m facility loan provided by OakNorth.

The £25m loan will be used to empower Blue Shield to expand its real estate bridging loan portfolio at speed.  Our dedicated Banking team played a crucial role in supporting this deal. Their expertise and commitment ensured a smooth process despite the complexity involved.

The Banking team from Lawrence Stephens was led by Director and Head of Banking  Ajoy Bose-Mallick, with assistance from Senior Associate Ashley Wright and Trainee Solicitor Alex Ruder.

Ajoy commented: “Blue Shield Capital’s recent £25 million loan arrangement marks a significant milestone in our partnership. We’re thrilled to support their growth across various real estate sectors, and we look forward to witnessing their continued success”.

Empowering and supporting women in Real Estate Finance

Posted on: May 2nd, 2024 by Yvonne Uzoka

Despite their significant contributions as leaders and trailblazers, women remain underrepresented in the real estate finance sector. Lawrence Stephens recognised this disparity and launched the Women in Real Estate Finance (WREF) initiative last year to push for gender equality in the field.

Our WREF initiative has ambitious goals, including:

  • Acknowledging achievements: Our initiative sheds light on the incredible work done by women in real estate finance, inspiring others and recognising their achievements across the sector.
  • Creating opportunities: By providing a platform for like-minded women to share experiences and learn from each other, our WREF initiative aims to overcome obstacles faced by women and foster growth within the field.
  • Challenging the status quo: Committed to balancing out the male-dominated sector, the WREF initiative takes a proactive and effective approach to challenge the status quo and enable real change in the industry.

There are a number of key components to the WREF initiative, including:

  • Panel discussions: WREF hosts panel discussions, such as the upcoming event titled “Building resilience on both sides: are allyship and mentoring the key to levelling the playing field?” These discussions highlight the value of women in leadership positions, recognising achievements and sharing experience of women in the real estate finance industry.
  • Addressing systemic hurdles: Recognising that challenges faced by women are rooted in educational and cultural biases, WREF takes a holistic approach to tackling systemic issues.
  • Demystifying entry: To bolster the sector, WREF is developing a mentoring program that demystifies entering real estate finance, including a walk-in clinic to provide guidance to young women facing barriers in the industry.

In addition, Lawrence Stephens has established the Gender Equality Network to advocate for broader women’s empowerment.

With our WREF initiative, we aspire to pave a wide path for brilliant women to pursue rewarding careers within the real estate finance sector. 

Senior Associate Rachel Coulthard recently discussed Lawrence Stephens’ WREF initiative in BCL Legal’s The Brief, which can be found here.

Lawrence Stephens completes £3.9m loan with Butterfield Mortgages

Posted on: May 2nd, 2024 by Natasha Cox

Our  Real Estate Finance team have recently completed their first deal for Butterfield Mortgages Limited – a £3.9million loan over a property in West London.

The loan has a five-year term and was secured over a Knightsbridge property with a value of £6million. The transaction involved the refinance of several leasehold titles

Butterfield Mortgages provide specialised mortgage solutions for domestic and international high net worth clients.

Gregory Palos was assisted by Lawrence Molloy and  Sophie Morton who worked tirelessly to ensure a swift and successful completion of this loan which pleased all parties involved.

Lawrence commented: “A complex matter which required careful consideration from all parties, we are delighted to have secured this loan and navigated the multiple refinances involved in this deal. It was a pleasure to work alongside the team from Butterfield Mortgages on our first deal together, and we look forward to strengthening our relationship over the coming months.”