Chris Henniker, Partner at Kidd Rapinet Solicitors and specialist in corporate finance, mergers and acquisitions, recently assisted with the sale of SLE (the global provider of neonatal ventilation products) to FTSE AIM listed Inspiration Healthcare Group PLC.

The family-run business, SLE, was founded back in 1956 by Denis Nelligan, an EEG hospital technician at the time.  Over the decades the company has invested and advanced its neonatal products, winning the Queens Award for Enterprise in 2009.  Today, SLE is a leader in its field of neonates – a highly specialised and niche area that improves the future well-being of some of the most critical babies.

The £18M deal saw Managing Director, Bernard Nelligan, working closely with Chris Henniker to receive proactive, commercial advice throughout the diligence process for Inspiration Healthcare.

The sales process was naturally halted back in March due to the Covid pandemic while both SLE and Inspiration Healthcare supported the government’s initiative to increase the production of ventilators to support the NHS.

Despite the disruptions to the sales process, all involved in the project worked tirelessly – taking instruction, providing purchase agreements, reviewing and negotiating the legal documentation (after the due diligence process) until the deal was concluded.

Bernard Nelligan, Managing Director for SLE said “Improving the wellbeing of the tiniest of patients has been close to our hearts for 60 years and I have no doubt this will continue under the ownership of Inspiration Healthcare.”

Inspiration Healthcare is set to become a world leader in neonatal intensive care equipment and the acquisition of SLE enables the leverage of international distribution networks, the ability to explore new markets and grow shared manufacturing skills and expertise.

SLE’s key management team will be staying with the business long-term and together the companies will continue to innovate and develop life-saving products.

Chris Henniker concludes “I’m delighted that we sealed the deal – it was a great team effort by all involved and a real pleasure to see the amazing products and skill sets of both companies coming together for the greater good.  I will watch their impact on the world with great satisfaction.”

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We meet every 6 months and have great working relationships.  Together we advise clients around the world on aspects of English, European and Community Law.  Examples of our many collaborations include:-

A Canadian client acquiring a franchise business with branches in various EU countries

Kidd Rapinet worked with lawyers in the relevant countries, particularly in France, the Netherlands and Belgium, to provide advice on the legal agreements and litigation arising out of some of those agreements. The client then purchased shares in a Dutch distributor and Belgium and Spanish manufacturers; we acted alongside EU lawyers on the acquisitions and subsequent disposals and on setting up the corporate holding structure.

A UK company acquiring a company in Germany and then relocating its HQ to Germany.

A UK company setting up a trading subsidiary in the Netherlands to ensure it could trade freely within the EU after the UK leaves the EU.

Sale of a property in Italy as part of a divorce settlement

In each case we worked with relevant local lawyers in each European country to deliver a swift resolution for our clients.

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Kidd Rapinet invested a fund of £400 and invited pupils to present their business ideas and pitch for a slice of the funds.  Our very own Shamit Rooproy, usually to be found in our Maidenhead office advising on all aspects of private client work, volunteered his services as one of the dragons.

The Challenge attracted the highest number of pupils ever seen in the TWBS Den, with over 70 Year 10 pupils pitching their business ideas to the dragons.  Shamit enjoyed the opportunity to engage with local young entrepreneurs who had put a great deal of thought and planning into their pitches.  The standard was so high, deciding who to invest in turned out to be a challenge in itself!

With additional funds provided by local care provider, Always Growing, the dragons this year were able to invest in more pupils than previously.  The successful entrepreneurs will be selling their goods and services in Windsor town centre on Tuesday 11^th December – look out for TWBS stall in Peascod Street!  And afterwards there’ll be an opportunity for a debriefing, with final accounts and a round-up of what worked well, what to do differently next time.  Kidd Rapinet are proud to be a part of this valuable learning experience, supporting business leaders of the future!

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In the case in question, the man, Stephen Mitchell, remarried and with his new partner adopted the highly distinctive name Mr and Mrs Hvidbo-Mitchell. The former Mrs Mitchell (now Mrs Croxford) promptly registered hvidbo-mitchell.co.uk, causing much alleged anxiety and distress to the couple and their family by using the website as a forum for hate and obsessive criticism of the ex-husband. Mrs Hvidbo-Mitchell petitioned Nominet to have the domain name transferred to her, and to stop Mrs Croxford using it. Sanjay Soni comments: “Although Nominet has in the past ruled in favour of celebrities, that’s because they have registered their names as trademarks. In this instance, even though the name Hvidbo-Mitchell is unique in the entire world, Nominet has ruled there is no free-standing right of personality, ie Mr and Mrs Hvidbo-Mitchell don’t own their own name, and Mrs Croxford cannot be stopped from using it.”

If you feel you would like to know more, call Sanjay Soni at Kidd Rapinet on 01753 532541 for further information.

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The claimant had been employed by the company as an apprentice joiner. He suffered an injury while working with an electric circular saw. Although the company had employers’ liability insurance, the policy excluded claims arising from the use of “woodworking machinery” powered by electricity. It therefore excluded any claim arising out of the claimant’s accident.

The company went into liquidation shortly afterwards and so the employee sought to hold one of the company directors liable in damages for the company’s failure to provide adequate insurance cover.

The company’s failure to have in place appropriate insurance was indeed a breach of its obligations under the Employers’ Liability Act and there are penalties for that offence. However, the obligation in this case was on the company, and whilst there are criminal offences that a director of the company could be held accountable for in similar cases, they were not relevant in this case.

The Employers’ Liability Act imposed direct responsibility only on the employer. A director or officer of the company might bear some responsibility for the failure to insure, but the Act had dealt with it not by imposing direct responsibility equivalent to that of the company, but by a specific and closely defined criminal penalty

Philip Jackson, a litigation solicitor in Kidd Rapinet’s London office said, “A person cannot be made indirectly liable for breach of an obligation imposed by statute on someone else. It was no different where the obligation was imposed on a company”.

If you would like assistance in relation to a litigation matter, call Philip Jackson at Kidd Rapinet on 020 7265 5476 for further information.

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Mark Studdart

New rules on the losing side paying the costs of the winning side in litigation can leave “winners” significantly out of pocket.

If you sue someone, and win, it is normal practice for your lawyers to ask the court to require the losers to pay for your costs in the action. A recent high profile case has shown, however, that you may not be awarded all, or even the majority, of your costs. The musician Brian May sued his neighbours over a three year programme of noisy basement development. He won and was awarded £25,000 in compensation. He then requested, and was granted, his costs of more than £200,000. The other side objected. At this point the courts decided that Mr May’s costs were unreasonable, so they were reduced to less than half. Then the new rule of “Proportionality” was applied, which dictates that if the costs are much higher than the damages, they must be reduced to be “in proportion”. So Mr May ended up with about £67,000 (including the compensation) as compared with the £208,000 that he spent on the case.

In another example, a national newspaper settled a privacy claim with a primary school teacher for £20,000. After the proportionality rule had been applied to her application for costs, however, she was awarded £80,000 in costs, as compared to the £240,000 that her legal advice and support had actually cost.

Mark Studdart, a litigation solicitor in Kidd Rapinet’s Aylesbury office said, “It would appear that the new proportionality rule is aimed both at reducing the costs of litigation and encouraging the use of alternative dispute resolution mechanisms”.

If you would like assistance in relation to a neighbourhood or other dispute, call Mark Studdart at Kidd Rapinet on 01296 432541 for further information.

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A landlord is not in breach of his duties to repair a property if the tenant in possession of the property had not informed him of the disrepair. Graeme Bellenger, a partner specialising in landlord and tenant disputes at Kidd Rapinet’s London office said, “This is an important clarification of the rights and duties of landlords and tenants”.

In the case in question, the landlord, who held a long lease of a flat in the block, sublet it to the tenant. The sub tenancy included the right for the tenant to use any communal parts, paths and drives in the block of flats. The tenant alleged that he had been taking rubbish from his flat to the communal dustbins when he tripped on an uneven paving stone on the pathway leading from the main door of the block to the parking area and, as a result, had suffered an injury to his right hand and his right knee.  The tenant was suing the landlord for damages.  The landlord had, however, been unaware of the uneven paving stone before the accident occurred.

The court ruled that the landlord’s liability to repair a property could only start from the point where he was made aware of the problem and that the tenant was the appropriate person to make him aware. As such the landlord was not liable for the tenant’s injuries and the tenant’s suit failed.

If you would like assistance in respect of either landlord or tenancy issues, call Graeme Bellenger at Kidd Rapinet on 020 7265 5467 for further information.

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• a link to the ODR platform (which is http://ec.europa.eu/consumers/odr); and
• the online trader’s email address.

This link has only just been published, and we are promised the ODR Platform itself will go live at that address on 15 February 2016.  KIdd Rapinet have included the required information in the “About Us” section of our own website, which you can see here. You must also in your “general terms and conditions” (which you use for your online contracts with consumers) inform consumers of:

• the existence of the ODR platform; and
• the possibility of using the ODR platform for resolving disputes.

Note that you are not actually obliged to use the ODR Platform, unless you are required to by the rules of your trade association or some specific enactment which applies to your business.  You just have to tell your customers about it.  However, according to the European Commission it “will allow consumers and traders to resolve their disputes without going to court in an easy, fast and inexpensive way”, which should in theory be a good thing.

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As has been widely reported, on 6 October 2015 the Court of Justice of the European Union gave judgment in the case of Maximillian Schrems v the Data Protection Commissioner for Ireland, holding that the European Commission Decision creating the “safe harbour” for the transfer of personal data from the EU to the US was invalid.

European data protection law prohibits the transfer of personal law outside the EU except to a country which “ensures an adequate level of protection” for personal data or where certain exceptions apply – for example where the data subject has given “unambiguous consent” to the transfer, or where “binding corporate rules” have been agreed to provide a contractual means of protection.  There is a very limited list of countries which have been found by the EU to ensure an adequate level of protection.  But, crucially, by Commission Decision 2000/520/EC of 26 July 2000 it included the EU/US “safe harbour” agreement, with which US companies could self-certify their compliance.  The US safe harbour was of vital importance to the large number of international businesses which transfer customer data to their US operations, and with the growing importance of the Cloud even companies with no US operations are increasingly storing data on servers which are physically located in the US – and have therefore been relying on their Cloud service providers’ confirmation that they are signed up to the safe harbour.  (Or at least they should have been relying on it if they had properly addressed their minds to the issue.)

All this was thrown into doubt when Edward Snowden revealed that the US intelligence agencies, and in particular the NSA, carried out widespread and indiscriminate surveillance of data stored by US companies.  We now know that US companies have to give access to their data to the NSA, and so are unable to guarantee the necessary adequate level of protection for their personal data to persons in the EU, as the surveillance is carried out on an indiscriminate basis, rather than a proportionate basis where necessary for national security purposes – such as to combat terrorism.

Mr Schrems (who is an Austrian citizen) therefore brought a case requiring the Irish Data Protection Commissioner to prohibit Facebook Ireland (which held his personal data on Facebook) from transferring that data to servers operated by Facebook Inc in the US for processing.  The Irish High Court considered it was bound by Commission Decision 2000/520/EC on the safe harbour, but had its doubts as to the validity of the decision in the light of the Snowden revelations, so referred to the CJEU the question whether it was bound to follow the safe harbour Decision.

The CJEU held that it was not, and that national data protection authorities are not prevented by Commission Decisions from carrying out their own assessment.  However, the Court went on to take the opportunity to hold (despite not having been expressly asked to do so by the Irish court) that Decision 2000/520/EC is invalid – particularly in the light of subsequent revelations.

So where does this leave the many companies that have been relying on the safe harbour to transfer customer data to their US operations, or just to store it in the Cloud?  They cannot just wait and see what happens when the case goes back to the Irish court to decide in the light of the CJEU’s guidance, as the CJEU has already held the safe harbour invalid.  Nor can they wait for the EU and US to conclude their current negotiations for an amended safe harbour, as that will take some time and they need to continue transferring personal data.  Binding corporate rules or standard contractual clauses in the form approved by the EU should be an option, but it is difficult to see how a US company could comply with any contractual data protection obligations it might undertake, given it would be bound to give the NSA access to its data.  There is a limited exception where “the transfer is necessary for the performance of a contract between the data subject and the controller”, which might arguably be used to perform existing contracts with customers.  But for the moment, the only viable option seems to be to obtain the unambiguous consent of customers to transferring their data to the US by an express opt-in, warning them of the risk of surveillance by the NSA (in case anybody isn’t already aware of this, or doesn’t appreciate that it could happen in this case).  Realistically this would involve stopping providing the service to the customer unless they click to confirm their opt-in to a clear warning message.

The alternative is to find a non-US Cloud service provider with servers in the EU or a country which is still considered to offer adequate protection; the list being Andorra, Argentina, Canada, Faeroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, Switzerland and Uruguay.

This Article originally appeared on my Blog at http://wildslaw.blogspot.co.uk/2015/10/no-safe-harbour-in-us.html.

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In the case before the court, the teachers in question had gone on strike for one day and argued that their contracts of employment required them to work outside their normal working hours – in their own time – to prepare lessons, mark homework and prepare reports and so on. This “undirected time” was not quantified and could, therefore, effectively require the teachers to work every day of the year. The relevant rule in the contract provided that teachers should work for “such reasonable additional hours as may be needed to discharge their duties effectively”.

The court considered that there are, in fact, many ways of viewing teachers’ pay and therefore their “daily rate”.  It could, for example, be deemed to be restricted to the 195 days that the teacher was scheduled to be at the school premises (190 days for teaching and 5 days for in-house training) – with the undirected activities taking place within the evenings of those days.  Equally, it was concluded that such a definition would be too harsh. It was therefore concluded that the time the teacher might be available for work should be set at five days of the week, fifty two weeks of the year.  That is, 260 days and as such, an employer was entitled to withhold one 260th of annual salary pay for each day of the strike from teachers who went on strike.

If you would like assistance in on an employment matter, call Cyrus Medora at Kidd Rapinet on 01753 532541 for further information.

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