Dallas McMillan's Glasgow Lawyers' Blog

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Facilitation of Tax Evasion (New Offences of Failure to Prevent)

The Criminal Finances Act 2017 creates two new offences of corporate failure to prevent the facilitation of tax evasion (the offences).

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Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill

The Scottish Government has introduced a Bill to reform the ways in which litigation is funded in Scotland.

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Commercial Leases - FRI's and Schedules of Conditions

Most landlords of commercial premises want to let their premises on leases that are very much in the landlords’ favour most specifically as regards the upkeep, repair and renewal of same. 

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Delegation of Company Directors' Power

Company directors are often required to execute documents or undertake acts in connection with a transaction or other events at short notice or at times when they are unavailable. It is therefore common for the board to delegate powers to act and signing authorities. There are also circumstances in which directors may wish to appoint an attorney to execute documents on their behalf. Whether the board or a director can validly delegate a certain act will depend on the delegation provisions in the company’s articles of association, and on the type of role that the board or director is attempting to delegate. The type of acts to be considered can be divided into the following categories: • Delegation by the board of directors.• Delegation of a director’s responsibility as a director.• Delegation of a director’s authority to bind the company.• Delegation of acts to be undertaken in a director’s personal capacity. Delegation by the board - A company’s board of directors has collective responsibility for managing the company, and the starting point is that decisions concerning the running of the company should be taken by board resolution. However, a board may delegate aspects of its functions to a committee, or to an individual executive director, or to others if and to the extent that the company’s articles expressly authorise that delegation. The committee, director or other individual to whom the directors’ powers are delegated may also sub-delegate those powers to others if the articles permit them to do so. It is therefore important to review a company’s articles whenever a board, committee or director intends to delegate or sub-delegate any of the board’s powers, to ensure that any authority under the articles is broad enough to cover the delegation in question. Any board resolution delegating authority to a committee or individual when that delegation is not permitted by the company’s articles may be held to be invalid. Common delegation provisions - In practice, most companies adopt articles that provide the board with wide powers of delegation, including by power of attorney For example, Article 5 of the model articles set out in The Companies (Model Articles) Regulations 2008 (SI 2008/3229) (Article 5) (model articles) for both private and public companies authorises the board of directors to delegate any of the powers conferred on it by the articles “to such person or committee; by such means (including by power of attorney); to such an extent; in relation to such matters or territories; and on such terms and conditions, as they think fit”. Any delegation under Article 5 may authorise further delegation of the directors’ powers by any person to whom they are delegated.Limits on power of delegation - Certain acts require a specific power to delegate to be included in a company’s articles of association and will not be covered by a general power to delegate such as that set out in Article 5 or regulation 72. For example, an express power should be included in a company’s articles if the board wishes to delegate its powers to determine directors’ fees and remuneration. In addition, certain acts, such as the authorisation of a director’s conflict of interest under section 175(4)(b) of the Companies Act 2006 (2006 Act), are required by statute to be taken by the full board, and may not be delegated to a committee of the board. To the extent that there is no express delegation of specific powers, the power may nevertheless be considered to be implicitly held by a director as a result of his executive office.

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Does your business have an internet and social media policy?

The Internet is now an essential aspect of almost every business but in legal terms, it creates significant risks, not least because it is so fast moving and so difficult for a business owner to control, in terms of legal and business risk. The internet also presents challenges because the law is struggling to keep up and due to the fact that it can be virtually impossible to determine, in the case of e-commerce transactions with an entity based abroad, which jurisdictional laws would apply in the event of a dispute.

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Should your business have an Employee Handbook?

An employee handbook is an important document as it should provide clear guidance on how you want your business to operate. The policies and procedures in the handbook will help with employee relations, which in turn improves productivity and efficiency.

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Do your staff use personal devices at work?

The Information Commissioner’s Office (“ICO”) recently issued guidance urging employers to introduce a clear policy on staff using personal devices for work.

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1297 Hits
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Buying a business: share purchase agreements

The Court of Appeal has held that clauses in a share purchase agreement providing that, in the event of a breach of the seller's restrictive covenants, the buyer's obligation to pay deferred consideration would cease and the buyer would be entitled to acquire the remainder of the seller's shares at a price based on net asset value (and excluding goodwill), were unenforceable penalties.

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IPO issues practice notice on relevance of colour to black and white marks used in colour

The UK Intellectual Property Office (IPO) has issued a Tribunal Practice Notice confirming that, where a trade mark registered in black and white form has been extensively used in a particular colour or colours, the court can take this into account when it is considering issues of likelihood of confusion, detriment and unfair advantage. It also says that in infringement proceedings, it may be relevant that the later mark has been used in particular colours. The same principle applies in opposition and cancellation proceedings. The clarification of practice arises from the ECJ's judgment in Specsavers v Asda (Case C-252/12).

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1237 Hits
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Response to Business Names Regulations consultation published

At the beginning of 2013, the UK Government (“Government”) launched a consultation seeking views on the future of The Company and Business Names (Miscellaneous Provisions) Regulations 2009 (“Regulations”). Its aim was to identify opportunities to improve and simplify the current system. The Government’s response to the consultation was published in December.

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1010 Hits
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Dos and don'ts for directors of a company on the brink of insolvency

A guide for director's who suspect an insolvency event is imminent.

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1027 Hits
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Serious Fraud Office bring charges under the Companies Act 2006

Criminal proceedings by the Serious Fraud Office have commenced against two companies by written charge. Gyrus Group Ltd, a UK subsidiary of Olympus Corporation, and Olympus have been charged with offences of making a statement to an auditor which was misleading, false or deceptive, contrary to section 501 Companies Act 2006.

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Are you Terms and Conditions of Business any good?

If you play any part in business these days, you will rely on your standard terms and conditions of trade to protect your interest and to limit your potential liability when providing goods or services to customers. Over time these standard terms and conditions often become outdated as the legal framework underpinning them changes. To ensure that your business can rely on its limitations of liability and is adequately protected standard terms and conditions should be regularly checked and where necessary updated.

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Franchising Briefing February 2013

This business briefing explains what a franchise is and highlights the advantages and disadvantages of franchising a business from the franchisor's perspective.

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Changes to the debt arrangement (DAS) scheme

On 7th February 2013 the Scottish Government announced plans to alter its Debt Arrangement Scheme (DAS) the Scottish Government’s Debt Management tool.  The DAS, which is uniquely Scottish, freezes interest and assists people struggling with debt to repay their indebtedness over a longer period.

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Directors disqualified for failing to maintain proper records

Two directors of Smart Credit & Debit Limited, a debt advice firm in Keighley, have been disqualified from acting as directors for six years each for failing to maintain proper accounting records or to account for substantial cash withdrawals from the company.

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Directors Disqualification

Three directors of an internet trading company based in Liverpool have been disqualified from acting as company directors for over 20 years for filing incorrect VAT returns.

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Review of insolvency practitioner fees and reform to complaint handling system announced

Business Minister Jo Swinson today recently announced a review that will ensure creditors achieve value for money from procedures carried out by insolvency practitioners.

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6940 Hits
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Companies wound up 'in the public interest'

Two connected London based companies, 10 Little Pigs and Magic Berries have been wound up in the public interest for the misleading promotion of franchise opportunities. The petition to wind up the companies was presented to the High Court following an investigation by Company Investigations, part of the insolvency service.

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2367 Hits
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High Court considers whether a warranty was also a representation

In Sycamore Bidco Ltd v Breslin & Anor [2012] EWHC 3443 (Ch), the High Court has considered whether express warranties in a share purchase agreement could found an action for misrepresentation in the alternative to a claim contractual claim for breach of warranty.

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1676 Hits
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