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It’s now very easy to share our personal views and thoughts with the world via social media. When it’s positive, this can be a force for good, however, social media can also be used to attack others, causing serious harm.
The recent decision in the Court of Appeal in Stocker v Stocker, a libel action brought by an ex-husband against his former wife, illustrates the risks of using social media to spread seriously damaging allegations about a former spouse (or anyone, in fact).
In the case, the Court made it very clear that a person who posts defamatory comments on a Facebook wall is responsible in law for their publication to all third parties who read them. Where those comments are defamatory (untrue statements made to third parties that cause serious harm to the subject of the statements/allegations) then liability will be found.
Whilst this ruling on liability may not appear particularly surprising or contentious, the facts of the case are a salutary reminder to those involved in divorce, or other family law disputes, of the need for restraint when it comes to publicly commenting on a former partner/spouse.
The Original Case
Libel proceedings began in 2015 in the High Court when Ronald Stocker brought a claim against his ex-wife Nicola, relating to a post she left on the Facebook page of his new partner, about an incident in the past when he had allegedly been violent towards her.
We commented on this case at the time, highlighting a heightened risk of disputes spreading beyond court proceedings to the wider-world because of the increasing popularity of social media.
In Stocker v Stocker, the Court heard that Mrs Stocker had become Facebook friends with her ex-husband’s new girlfriend, Ms Bligh, and had commented on a status update posted on Ms Bligh’s Facebook wall. Ms Bligh then posted a further status update asking Mrs Stocker to call her, which led to Mrs Stocker making various comments on Ms Bligh’s Facebook wall, which her ex-husband alleged were defamatory.
In her defence, Mrs Stocker claimed that although she knew her comments on Ms Bligh’s initial status update were visible to Ms Bligh’s Facebook friends, she believed that her comments following the further status update were private. The Court rejected this argument, however, and found that Mrs Stocker
“…did not give a moment’s thought to the fact that their exchanges were being conducted in a semi-public arena accessible to all Ms Bligh’s Facebook friends.”
The High Court found that the post was defamatory, and awarded in Mr Stocker’s favour.
Court of Appeal
Mrs Stocker appealed the decision but found little sympathy in the Court of Appeal.
The Court commented that Mrs Stocker was aware that the particular Facebook platform was semi-public and deliberately posted on it without thinking about who else might see her posts.
Lady Justice Sharp said:
“…the posting of the Comments on Ms Bligh’s Facebook Wall was in reality no different in substance or in principle to the putting up of a notice on a conventional notice board, accessible to third parties.”
The fact that the notice board in this case (Facebook wall) was electronic rather than a physical board was immaterial for the purposes of deciding liability; the comments made were instantly accessible to all of Ms Bligh’s Facebook friends and so, in legal terms, Mrs Stocker published them directly to every third party who read them on the Facebook wall.
In particularly emotive family disputes a party may be tempted to seek to gain an advantage by taking the dispute outside of a courtroom setting, onto a public forum such as Facebook or Twitter. However, this is very risky and the Court of Appeal has made it clear that when defamatory comments are made, the offending party will be held liable.
If you’d like more information on this, our latest Guidance Note explains further Reputation Protection in the context of Family Law proceedings.
Insolvency has been very much in the news over the last few months. We have seen the recent spate of High Street retailers finding themselves in difficulties. We have also seen the recent case of Wright & Another v The Prudential Assurance Company Limited (2018) concerning the liability to pay rent as an expense of administration following the termination of the BHS voluntary arrangement. Of course, in the construction industry we have seen the recent collapse of Carillion.
In 2017, two cases highlighted the interaction between construction adjudication and insolvency protection.
What is construction adjudication?
The Housing Grants, Construction and Regeneration Act 1996 (the Construction Act) implies into Construction Contracts (as defined in the Construction Act) a right to resolve disputes through adjudication. Adjudication is a swift process designed to resolve disputes which arise during the currency of a construction project, without derailing the project itself.
Many adjudications concern the entitlement to be paid. Once published, an adjudicator’s decision is converted into an enforceable judgment by a specific summary procedure commenced in the Technology and Construction Court (TCC).
Rossair Limited v Primus Build Limited (2017)
Primus Build Limited (Primus) was engaged as the main contractor in a project to construct a hotel in Central London. Rossair Limited (Rossair) was a specialist mechanical installation sub-contractor, engaged by Primus to undertake work on the project.
A dispute arose over Rossair’s entitlement to be paid. Rossair referred the dispute to adjudication. The adjudicator published a decision under which Primus was required to pay Rossair just over £350,000. Rossair failed to pay and Primus commenced enforcement proceedings in the TCC.
Bernhards Sports Surfaces Limited v Astrosoccer4u Limited (2017)
Bernhards Sports Surfaces Limited (Bernhards) was engaged by Astrosoccer4u Limited (Astro) to lay a football pitch.
As with Rossair, there was a dispute over payment. Bernhards referred the dispute to adjudication. The adjudicator published a decision under which Astro was required to pay Bernhards just over £175,000. Astro failed to pay and enforcement proceedings were commenced.
The Insolvency Act 1986 (the 1986 Act) provides a number of ways in which a company in financial difficulty can be shielded from claims. Some examples are set out below.
Company Voluntary arrangements
A Company Voluntary Arrangement (CVA) is a statutory compromise between a debtor and its creditors. Under a CVA a debtor makes a proposal to discharge liabilities either in full or at a reduced rate; typically to be paid by instalments at fixed points time.
If approved by a majority of creditors, the CVA becomes binding on all. The rationale is that creditors may be willing to accept all or part of the money owing to them over a set period of time, rather than face the prospect of recovering nothing if the CVA is not approved.
Administration is a process under which a company in financial difficulty is protected against prosecution of claims (new and existing) for a period of time. Its purpose is to provide space to allow an assessment of whether a company can be rescued and to implement a rescue plan.
Both administration and CVAs bring with them a statutory moratorium on claims In the case of administration, the moratorium automatically commences on service of a notice of intention to appoint an administrator and will continue for the duration of the administration. With a CVA, the position is different. It only lasts for a 28 day period, has to be applied for (through court) and is only available to Small Companies (as defined in the 1986 Act). The Small Companies moratorium is distinct from any moratorium imposed within the CVA itself.
During any moratorium new claims cannot be commenced and existing ones cannot be progressed without (in the case of administration) the consent of the administrator or the permission of the court. In considering whether to grant permission the court must consider the guidelines laid down by the Court of Appeal in Re Atlantic Computer Systems plc (1992).
The Insolvency Protection in Rossair and Bernhards
In Rossair, it was Primus’ case that a proposal for a CVA had been made and proceedings should therefore be stayed. While it was not explicitly advanced as reliance upon the Small Companies moratorium available under the 1986 Act, the court treated Primus as seeking to rely upon it.
In Bernhards, following the service of notice of the intention to appoint an administrator of Astro, Berhnards sought the court’s permission to continue with its enforcement application.
While insolvency protection, if used appropriately, can aid companies in distress, the court determined that in each of these cases it was being cited as nothing other than a tactic to try and avoid payments that were otherwise legitimately due.
In Rossair this was a straightforward conclusion to draw. While Primus advised the court that it was proposing a CVA and had filed the necessary paperwork (which would have had the effect of imposing a moratorium), there was simply no evidence produced to support this conclusion.
The 1986 Act does make provision for directors of eligible companies who propose a CVA to take steps to seek a Small Companies moratorium pending approval of it. However, the court concluded that Primus had taken no steps to obtain one and was therefore unable to rely on it.
In Bernhards, there was no dispute that a moratorium came into effect and that it was for the creditor to demonstrate why enforcement proceedings should be continued under the Atlantic Computer Systems guidelines. In drawing upon an enforcement decision from earlier in the year (South Coast Construction Limited v Iverson Road Limited (2017)), the TCC identified the following factors as the most persuasive:
The proceedings were effectively at an end (the claim was for judgment to enforce already concluded proceedings);
Continuing the enforcement proceedings would not frustrate the administration process;
There was no risk of undue or unfair prejudice; and
The conduct of the debtor.
As to conduct, the TCC was highly critical of Astro’s attempt to avoid enforcement through the use of administration. It described the notice of intention to appoint as being entirely bogus and solely intended to frustrate legitimate attempts to secure payment of a legitimate debt. The conduct of Astro’s solicitors was also heavily criticised by the TCC.
Insolvency protection, when used legitimately, is an important tool to aid companies in distress. Used properly businesses can be saved, jobs retained and debtor losses minimised or extinguished. The moratorium on new and existing court processes is an important part of such protection. However, what the cases of Rossair and Bernhards (and the earlier case of South Coast Construction) illustrate is that the courts are alive to the risk of such processes being misused and, in the context of enforcing construction adjudication decisions, they will be slow to allow such protections to be used to the detriment of legitimate claims and innocent creditors.
A team of thirteen from law firm Cripps has climbed the three highest peaks in Scotland, England and Wales to raise money for the firm’s charity of the year – Rethink Mental Illness.
They took part in the Three Peak Challenge, which involves walking a total of 23 miles and scaling 10,052ft up Ben Nevis, Scafell Pike and Snowdon. The challenge also included driving between the three mountains – a distance of more than 460 miles. This brought the total mileage covered from Tunbridge Wells and back to 1,200 miles.
It was organised by senior associate Helen Fisher and trainee solicitor Tom Bushell. “We are all extremely proud of our achievement” said Tom. “Despite a few setbacks enroute, we managed to complete the challenge in just over 36 hours. One of the biggest issues we faced was the lack of sleep which made the physical exertions all the harder – we were all extremely grateful to be in our own beds on Sunday evening!”
Helen added: “Thank you to everyone that has supported us on the challenge, particularly our minibus drivers! Whilst the challenge was tough, we are thrilled to have conquered it and raised so much money for Rethink”.
The climb was in aid of Rethink Mental Illness, a charity which directly supports thousands of people every year to get through crises and live independently. The charity operates more than 200 mental health services and 150 support groups across England, providing psychological therapies, peer support groups, housing services and Crisis and Recovery Houses.
Cripps is delighted to be supporting the Kent Design & Development Awards 2018.
Jointly organised and sponsored by DHA Planning, Kent County Council and Maxim PR, the awards take place every two years and celebrate the best of the Kent property and construction industry.
Nominations are now open across the six categories: commercial, industrial and retail; conservation; environmental performance; infrastructure and renewables; public Buildings – education and community; and residential – minor and major.
Paul Carter, leader of Kent County Council, commented: “These awards showcase Kent’s built environment and epitomise the longstanding spirit of partnership between the public and private sector, through the skills of our local architects, construction companies, developers and surveyors.
“There have been many changes to the economic landscape since the last awards in 2016 and Kent is determined to show itself to the best possible advantage. There is a lot to be proud of in this county, and having good quality buildings and structures is a way of showing to the world that Kent is the place to be.”
Cripps is sponsoring the commercial, industrial and retail category at the awards. Mike Scott, partner and head of real estate said: “This category represents an important aspect of the county’s development scene, not least for its impact on the business community which requires good quality premises to operate from. Our work means we often work with clients on the development, purchase or sale of commercial property and we are pleased to have this opportunity to support the sector.”
The deadline for entering the Kent Design & Development Awards 2018 via www.kentdesigndevelopmentawards.co.uk is July 31.
Shortlisted schemes will be notified in September, with an awards ceremony taking place on November 8.
With today (Friday, 22 June) being National Bring Your Dog To Work Day, Charlotte Cooke-Vaughan, an HR consultant at law firm Cripps, celebrates the many documented benefits (wo)man’s best friend brings to the workplace.
During the 18th century the benefit of animals in asylums was identified as helping to encourage “benevolent feelings”, to the extent that by the 19th century the British Charity Commissioners recommended animals be added to institutions to create a better environment. Even Florence Nightingale recognised that bedbound patients gained pleasure from the presence of a bird.
Since then, there have been many more scientific studies focusing on the effect of animals on human health and wellbeing. The Friedman and Colleagues Study (1980) found that dog owners were 8.6 times more likely to be alive one year after a heart attack than non-dog owners. More recent studies have shown dog owners are better equipped to deal with the effects of stressful events, have reduced blood pressure and lower levels of anxiety, loneliness and depression.
Levinson’s study in 1962 opened up the way for animal-assisted therapy when he noticed patients developing a rapport with his dog. Those who did were more likely to respond well to therapy while the dog was present. His initial observations have since been substantiated and dogs have become the most commonly used type of animal for a whole range of therapies. They are regularly used to bring their unique brand of health and wellbeing benefits to schools, hospitals, care homes, adults and children with disabilities and people with autism.
Dogs are a fantastic way to meet people (think networking!) and owning a dog, apparently, significantly increases your chances of talking to a complete stranger – the cuter and cuddlier the dog, the more new people will want to talk to you. The very act of walking a dog brings great health benefits too.
When talking about dogs we must not forget the ones that support the day-to-day care and preserve the independence of people with disabilities. Dogs are clever enough to be trained to serve as an alert system for conditions such as diabetes and epilepsy and even sniff out some human diseases including cancer.
Dogs can also help us with our mindfulness. Their ability to live in the moment and enjoy it gives us pause for thought: imagine the look on a dog’s face as you offer it a treat, or when it’s sleeping peacefully at your feet. They remind us to stop and enjoy the now, which can be a rare thing in our hectic lives.
So what does all this mean for the workplace?
According to the HSE UK there were 526,000 workers suffering from work-related stress, depression or anxiety in 2016/2017 and in turn there were an estimated 12.5 million sick days taken as a result of this. Stress, depression or anxiety accounts for 40 per cent of all work-related ill health cases and 49 per cent of all working days lost due to ill health. If dogs can help with this, shouldn’t we be considering them as part of staff wellbeing and resilience strategies?
We would, of course, in HR need to be assured of the enhancement of everyone’s wellbeing. There may be people who are allergic, feel stressed due to phobias or have had a bad experience with an ill-trained animal. But with agile working maybe they could work from home on dog day or reversely perhaps we should be encouraging staff who have dogs to work more from home, to gain the benefit of their canine companions.
Taking that into account, if dogs can lower our blood pressure, help us deal with stress, get us fit as well as make new friends, maybe we should be thinking more about them being at work for life, not just for Bring Your Dog To Work Day?
There is nothing more frustrating for employers than an employee who has been dismissed for blatant misconduct having an arguable claim for unfair dismissal due to mistakes being made in the disciplinary process. You may know your written disciplinary policy like the back of your hand but are you fully equipped to deal with any unforeseen or tricky issues that may arise? In this session we will discuss some of the problem areas that often crop up for our clients when dealing with disciplinary processes such as:
Whether or not to suspend an employee
Dealing with reluctant witnesses or third party witnesses
Employees who don’t attend or want to repeatedly postpone hearings
The role of the employee’s companion
The independence of the decision maker
Relying on earlier warnings
Dealing with employees with less than two years’ service
Cripps has been listed as one of the UK’s top family law firms in a definitive guide for outstanding providers in the family field.
The guide has been published by eprivateclient, the leading website and news service for private client practitioners, including lawyers, accountants, trustees and fee-based IFAs. Its 2018 Top Family Law Firms showcases leading providers of advice in areas from child protection and family governance to pre and post-nuptial agreements, and has been based on a survey of over 100 law firms throughout the UK.
Alex Davies, partner and head of the family team said: “I am thrilled that the team has been recognised by eprivateclient in this way. It is a fantastic testament to the commitment and dedication they exhibit on a daily basis, ensuring that we always deliver the highest quality legal advice to our clients.”
The annual list will be marked with a celebratory champagne reception in London on Monday 2 July 2018.
Cripps has advised the sellers of A&A Electrical Distributors Limited (A&A) on the sale of the company to Dewhurst plc. Dewhurst plc, an independent supplier of quality components to the lift, keypad and transport industries acquired the entire issued share capital of A&A for an initial consideration of £10.5 million, plus a deferred consideration based on profits generated over the next two years.
A&A, based in North East London, is a lift and electrical distribution company which works with major and independent lift companies operating in the UK. The A&A group was founded by Alan and Ann Warren thirty five years ago during which time the company has grown to be a leading supplier of lift components across the UK and has become a long-standing customer of Dewhurst.
Cripps worked closely with Ann and Alan Warren to ensure the sale of their business completed smoothly and their objectives were met. Ann Warren commented, “selling a business is not something you do everyday, so we were very grateful for the support we received from Julie and the team at Cripps. They worked with us to ensure we secured a positive future for the business and staff”.
The Consumer Rights Act 2015 (Act) consolidated and reformed consumer protection law in the UK. As we all purchase goods and services from businesses, it is important to know your statutory rights if a dispute ever arises over the goods or services purchased.
This guidance note explains what your legal rights are as a consumer.