spring 2015 hilldickinson.com/retail Brand protection: reputation matters Page 4 Fibromyalgia: a chronic pain for insurers? Page 6 Offers to settle: changes on the horizon Page 10 >>> continues on page 3 let’s talk shop retail claims update issue 18 The law Section 4 of the Road Traffic Act 1988 made it an offence to drive a motor vehicle while being unfit to do so as a result of drug consumption, and section 5 prescribed limits of alcohol consumption. By virtue of section 56 of the Crime and Courts Act 2013, a further section, 5A, was added to the Road Traffic Act 1988, creating an offence should a driver exceed the prescribed limits for certain drugs. The new regulations specify the controlled drugs and in each case the prescribed limit for the purposes of this offence. The offence The new regulations set out the prescribed limit of certain controlled drugs that, if exceeded, will constitute an offence, irrespective of the effect on a person’s ability to drive. The regulations set out eight legal medications and eight illegal drugs that fall within this section and ultimately, bring the law against drug driving in line with the law against drink driving. The spirit of the new law is to encourage drivers to take greater responsibility for their actions and reduce the risks to other road users. The legal medications covered by the regulations include antianxiety drugs as well as strong painkillers. The illegal drugs include cannabis, cocaine and LSD. The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 came into force on 2 March 2015. The regulations have a significant impact on employers who employ staff to drive. Philip Moy, retail regulatory lawyer, considers the new regulations and how they affect retailers and offers some practical tips on how to comply. Over the limit 2 Welcome Welcome to issue 18 of let’s talk shop. We lead this month with an update on changes to the law governing drug driving and how this could affect retailers who employ drivers. Philip Moy, one of our regulatory retail lawyers, provides some practical tips. Kendrah Graham, retail claims lawyer, also provides an overview on changes to CPR 36 concerning settlement offers and how to navigate the new rules. Clare Edwards, retail employment lawyer, lifts the lid on employee data and sets out what you need to do when handling your employees’ personal data. Elizabeth Wilson-Lagan, retail claims lawyer, also takes a look at the rise in claims for fibromyalgia in the first of our series of articles focusing on the new ‘claims dynamic’ as we enter year three of the reforms and the claims environment changes. We have our usual calendar of events too, so enjoy the newsletter, and we hope to see you at one of our events or at AIRMIC where we look forward to welcoming you back to the sun-drenched city of Liverpool! In the meantime, you can stay up to date with our articles, news and events by following us on Twitter, @HillDickinson Best wishes, Andrew email@example.com We do hope that you enjoyed the christmas edition of let’s talk shop. Our antlers, which were sent as our Christmas gifts, were a big hit! We are grateful to Bluefin Brokers and Marks and Spencer for sharing their Christmas spirit... which we couldn’t resist sharing with you! Fortunately for them (and us!) we decided not to run a caption competition. Christmas spirit Bluefin Brokers Marks and Spencer AIRMIC conference 2015 Come and visit us at the AIRMIC Conference on 15-17 June 2015. This year’s conference is taking place at The ACC in Liverpool and is focussing on raising the profile of risk. We are exhibiting at the conference, and you will find us at stand #110. We look forward to seeing you there!! Benzoylecgonine Clonazepam Cocaine Delta-9-Tetrahydrocannabinol Diazepam Flunitrazepam Ketamine Lorazepam Lysergic Acid Diethylamide Methadone Methylamphetamin Methylenedioxymethamphetamine 6-Monoacetylmorphine Morphine Oxazepam Temazepam Controlled drug 50 50 10 2 550 300 20 100 1 500 10 10 5 80 300 1000 Limit (microgrammes per litre of blood) 3 let’s talk shop issue 18 The new regulations are assisted by new and more accurate road side drug testing kits (‘drugalysers’) which can assess drug traces from a saliva swab. Penalties for individuals who commit offences under these new regulations range from a one year driving disqualification and fines of up to £5000, to a prison sentence. It is a defence if a driver can show that the drugs were taken in accordance with any directions given by the person by whom the drug was prescribed or supplied. The regulations also include an offence for failure to provide a specimen and drivers need to be aware of the need to co-operate regardless of whether the medication was prescribed. What does this mean for employers? The inclusion of defined limits for prescription medicines signals a significantly increased due diligence administrative burden for employers who require their staff to drive. For retailers, this will of course include delivery drivers, but will also extend to area or store managers that may need to travel between locations. Indeed, both employers and their insurers should educate their employees about the regulations and insist on medication checks and confirmation that drug driving policies have been updated with associated regular training. While the first prosecutions under the new regulations will throw up a multitude of legal, procedural and reputational challenges and arguments, it is not beyond the realms of possibility that employer responsibility could extend to corporate manslaughter if an employee, who is subsequently found to have had drugs in their system, is killed or kills another on the road whilst carrying out their work. It is therefore important that employers take heed of this zerotolerance approach and ensure that measures are in place within the workplace to ensure compliance. Philip Moy firstname.lastname@example.org Practical tips Both employers and employees can take the following steps to minimise the risks of falling foul of these regulations 1. Employers should ensure that employees who drive are aware of their responsibility to inform employers of their prescribed drug regime. 2. Employees on prescribed medication must take it in accordance with instructions, and keep those instructions with them in the car in case they are stopped. 3. Employers should regularly check their drivers understand their responsibilities and where possible carry out spot checks in the same way as they would to prevent drink driving. 4. Employers should amend driving policies to reflect these changes and liaise with their brokers and insurers to obtain their sign off on the policies to ensure coverage. >>> continued from page 1 4 The increasing use of online platforms, such as Google and other forms of social media, has transformed the way that business is done. Clarity, consistency and authenticity are crucial to the success of a brand. Brand owners are required to put measures in place to promote loyalty, protect brand equity, revenues and profits, to leverage commercialisation of the brand, prevent brand erosion and to build brand confidence. A brands’ ability to respond immediately to brand abuse can have a profound effect in preserving the way that brand is perceived. How can you protect a brand? A brand can be protected in many ways – from establishing clear policies and procedures, to auditing and monitoring abuse, to using war rooms to identify misuse of intellectual property (IP) and negative publicity. However, investing in legal protection is also key to safeguarding a brand. Take ownership Registering IP early, along with assigning copyright in works (including logos and imagery), will assist in the fight against IP abuse. Copyright assignment is often overlooked and can cause problems when it comes to enforcing rights. When registering a brand, the owner should thoroughly analyse the classes of goods and services in which it requires protection. Classification specifications must adequately describe the way in which the brand is currently using (and intends to use) its IP, so as to cover future developments and advances in technology. Be proactive Preparing templates of key documentation - such as infringement letters tailored to each form of abuse, along with takedown notices to internet service providers, domain name registrars, social networking sites and (for example) app stores - will enable brands to move quickly to stop abuse. It is also worthwhile spending time and resource planning for any litigation which may arise from brand abuse. Drafting opposition documents and witness statements supporting applications for breach of trademark and injunctive relief in advance will facilitate immediate action. Preparation can substantially reduce damaging exposure which could otherwise adversely affect the value of the brand. With brand visibility expanding exponentially in today’s world of electronic media, the need to take appropriate steps to protect this key aspect of any high profile business is vital to the continued success of that brand. Louise Millington-Roberts email@example.com With brand reputation and image becoming increasingly crucial in the retail market, Louise Millington-Roberts, one of our retail reputation lawyers, looks at some of the issues that may arise and considers what can be done to preserve brand quality and integrity. Brand protection: where im@ge is everything and reputation matters What kind of abuse are brands facing? - Ambush marketing (an unauthorised company piggybacks on the goodwill of a brand by attempting to obtain publicity or exposure using the brand’s profile) - Unauthorised use of intellectual property - False affiliation, association and impersonation - Cybersquatting (registering, trafficking in, or using a domain name in bad faith as it contains a trademark belonging to someone else, with an intent to profit from the goodwill of that trademark) - Counterfeiting - Unauthorised use of goods and services - Diversion of traffic from official websites - Linking goods and services to undesirable content - Phishing 5 let’s talk shop issue 18 A significant case? Land agreements (including leases of retail premises) have been exposed to the full force of the Competition Act since 6 April 2011, but there has been uncertainty as to how the courts might apply it in practice. Martin Retail Group -v- Crawley Borough Council is the first reported case on the application of competition law to retail leases and suggests that the courts will perhaps be more sympathetic than anticipated to arguments based upon competition law. A surprising context? Restrictive covenants imposed by retailers on the disposal of surplus property and exclusivity agreements granted by landlords to anchor tenants are considered most vulnerable to competition law. Indeed, the seven largest supermarket chains are made subject to specific additional restrictions in these two areas through the Controlled Land Order. It is therefore somewhat surprising that the first reported case concerns a user clause in a lease and in the context of lease renewal proceedings. What happened? Crawley Borough Council owned a parade of eleven shops - the only shops serving the post-war housing estate at Furnace Green, Crawley. A longstanding tenant mix policy ensured that the parade included a selection of complementary retailers, including a bakers, a pharmacy, a hairdresser, a takeaway, a small supermarket and Martins the newsagent. The case arose on the renewal of Martins’ lease, because Martins wished to extend their user clause to become a convenience store which would effectively compete with the supermarket. The council wished Martins to remain solely as a newsagents and proposed a user clause for the renewal lease which would make it clear that Martins could not sell groceries or other convenience goods. Who won? The matter was listed for a preliminary hearing to deal with the competition law status of the proposed user clause. The council contended that the user clause fell within the ‘consumer benefit exemption’, which protects anti-competitive agreements that provide a benefit to consumers. The judge held that the user clause proposed by the council infringed competition law and did not benefit from the consumer benefit exemption. Despite being only a preliminary hearing, it seems unlikely that any subsequent hearing to settle the terms of the renewal lease would impose on the tenant a user clause which has already been declared to breach competition law. The wrong question? It was always anticipated that a strong case would be needed to invoke the consumer benefit exemption, so it is not altogether surprising that the judge decided that the exemption did not apply. The council appears to have conceded that the proposed user clause did breach competition law, despite Government guidance that expects only a minority of land agreements to offend competition law and confirms that landlords have a legitimate interest in using user clauses in leases to manage their estates and ensure a good tenant mix. The council was presumably mindful that the housing estate was likely to constitute the ‘relevant market’ and that this parade comprised the only shops within that market. Implications for retailers? At first glance, this case is great news for retailers who can use it to argue against restrictive user clauses in leases and possibly even to obtain a wider user clause on lease renewal. It seems unlikely that the exemption will be invoked, unless in exceptional circumstances. However, competition law focuses on the potential impact of a particular restriction on the relevant market, rather than the wording of the restriction and few markets will possess a similarly complete absence of actual or potential competition. Virtually every shop lease in the country contains some limitations on the tenant’s use of the property and in the vast majority of cases these will not result in a breach of competition law. Pamela Jones firstname.lastname@example.org Pamela Jones, from our retail property team, reviews a significant case on the application of competition law to shop leases. What’s the use? 6 Across the retail sector, claims for fibromyalgia are on the increase. Elizabeth Wilson-Lagan, retail claims lawyer, takes a look at what fibromyalgia is and why it is a ‘pain’ for defendants. The pain for defendants Claims for fibromyalgia and other types of chronic pain are notoriously difficult to defend. All a claimant must do to succeed is to establish that the pain is a result of an injury. The fact that there is no physical explanation for the pain makes establishing, and disputing, causation very difficult. Diagnosis is largely subjective, based primarily on the claimant’s self-report, allowing scope for exaggeration. It is also generally associated with psychological problems. That said, courts are reluctant to make a finding of malingering and in the absence of strong evidence to the contrary tend to give claimants the benefit of any doubt. Claimants frequently contend that they are debilitated by the condition and unable to return to work. As a result, these cases usually involve large claims for loss of earnings and care and assistance due to poor prognosis. This can be a reserving nightmare for handlers, clients and insurers as what may have initially appeared to be a low value soft tissue injury, for example, ends up being a high value claim. Managing a fibromyalgia claim 1. Early identification The key to defeating such claims or minimising risk is early identification. Case handlers should be alert to red flag indicators such as pain lasting longer than an expert’s initial diagnosis as well as the claimant being female and approaching middle age, having sleeping disorders, anxiety, depression and irritable bowel syndrome. A claimant’s history can be obtained from the claimant’s medical report and crucially medical records which should be obtained at the outset. 2. Thorough investigation Once fibromyalgia is identified, the medical, occupational health, personnel and DWP records should be scrutinised to identify the claimant’s current condition, pre-incident work history and whether they have been seen by any other doctors, physiotherapists, osteopaths etc. A chronology of the presentation and evolution of symptoms should be drawn up so as to highlight any inconsistencies, pain free periods or other competing causes. Objective evidence of the claimant’s level of functioning should be obtained to establish any discrepancies in the claimant’s evidence and so as to raise any allegations of exaggeration. While surveillance increases expenditure, it is highly effective particularly where there are doubts as to credibility. 3. Medical evidence Quality medical evidence is vital. While largely subjective, the presence of tender points is one of the objective criteria used to diagnose fibromyalgia and therefore an expert with experience in fibromyalgia and who understands these tender points and refers to them should be preferred. This area falls within the expertise of a rheumatologist although in most cases a psychiatrist will also be necessary. The focus should be on the cause of the pain and not on treatment. It is also important that the experts give mutually consistent evidence and it may be worthwhile to arrange a conference to discuss the issues before final reports are prepared. Tactical considerations A claim for fibromyalgia can be defeated or limited by establishing: • A break in the chain of causation. For a claim to succeed there has to be continuity of pain evolving from the accident. If pain ceases only to present itself later on or develops a number of months after the index accident, causation should be raised, particularly if there is an intervening life event, illness or injury. • The claimant’s condition pre-existed the incident and is no worse or has only been exacerbated by the incident; • The claimant was vulnerable to the condition and it would have been triggered in any case by life events. This issue should be raised with the medical experts and the claimant’s post-accident medical records reviewed to identify any post-accident medical conditions or life events that would have precipitated fibromyalgia sooner or later. • Exaggeration or fabrication. Surveillance evidence will be critical to undermining these allegations. • Future improvement in the claimant’s condition through a pain-management programme. This will of course depend on prognosis and, if a claim is genuine, it may be worthwhile making an interim payment for treatment as this may ultimately reduce a loss of earnings claim if the claimant’s condition has improved by the time the matter reaches trial. Is early settlement best? If a claim is genuine then settlement should be considered at an early stage to reduce risk and the potential value of the claim both in respect of damages and in costs. If allowed to run to trial, costs are likely to spiral out of control. The key to dealing with these claims, therefore, is containment. In most cases, a realistic Part 36 offer should be made to put the claimant at risk and tempt early settlement. If there are serious doubts as to whether the claimant is genuine, a robust approach should be adopted. The claim should be thoroughly investigated and defended and surveillance evidence obtained where appropriate. As ever it is striking an appropriate balance between paying the legitimate claims fairly and robustly defending the fraudulent ones. Elizabeth Wilson-Lagan email@example.com Fibromyalgia - a chronic pain for insurers? CLAIMS DYNAMIC 01 What is fibromyalgia? Fibromyalgia is a chronic condition that can cause widespread musculoskeletal pain, stiffness and tenderness of the muscles, tendons and joints. It can develop spontaneously or be triggered by trauma and is one of a number of conditions often referred to as chronic pain. Often, there is no organic cause for the pain and where there is physical injury, the level of pain complained of is disproportionate and persists longer than reasonably expected. The diagnosis of fibromyalgia is therefore often one of exclusion. 7 let’s talk shop issue 18 B -v- Retailer The claimant sought in excess of £450,000 for a back injury caused by an accident at work. Our orthopaedic expert confirmed that the claimant had a pain syndrome, and pre-existing vulnerability to injury as a result of longstanding alcoholism. The latter placed pressure on the claimant, who subsequently accepted an offer of £75,000 out of time resulting in a significant saving and favourable costs award for the defendant. B -v- Food retailer The claimant slipped on ice and sought damages for injury to his ankle, along with a pain syndrome. Liability was agreed. Both the claimants and the defendant’s orthopaedic experts confirmed the diagnosis of a pain syndrome but were of the opinion that this had resolved prior to proceedings and were unable to explain the claimant’s severe on-going symptoms. Nevertheless the claimant sought damages in excess of £500,000 on the basis of pain management evidence. We were able to undermine the credibility of the claimant’s pain management expert, limiting the loss of earnings claim, and negotiated a settlement of £110,000 net of CRU. D -v- Food retailer The claimant sought damages for a pain syndrome following an incident in which our client’s employee dropped a microwave on the claimant’s hand. Early and proactive investigation, including review of the claimants medical and DWP records confirmed that this was a genuine pain syndrome, and the claimant accepted a low offer of £30,000 pre-litigation. Quick commercial settlement was achieved in a claim which had real potential to escalate in value both in damages and costs. B -v- Retailer The claimant sought damages against her employer when shelving collapsed, injuring her hand. Liability was admitted, subject to causation. The claimant contended that she suffered nerve damage, went on to develop a pain syndrome and, essentially, that she had a functionally useless right hand. She alleged that her future employment prospects had been seriously affected and sought damages in excess of £430,000. We undermined the claimant’s future loss of earnings claim, via witness evidence. As a result, we negotiated a much reduced settlement of £135,000. Hill Dickinson recent successes in defending and managing pain syndrome claims 8 Clare Edwards, retail employment lawyer, considers the obligations under the DPA in conjunction with ICO guidance, and offers some practical tips for businesses when dealing with employee data. What are employers required to do under the DPA? As data controllers under the DPA, employers need to follow eight data protection principles when processing employee data. The principles not only include ensuring that personal data is fairly and lawfully processed, and that it is adequate, relevant and not excessive, but also that appropriate steps are taken against ‘unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data’ (Principle 7). The DPA will apply throughout the employment cycle, so recruitment and post-termination also have data protection implications for employers. The ICO recognises the extent of the need to process personal data in the employment context and has produced guidance to help employers lawfully process personal data of interviewees, workers, employees and former employees. ICO guidance Recruitment – keep it simple Applicants need to know that their data is only going to be used for recruitment or selection purposes, or informed if data will be used outside these purposes. Businesses also need to ensure that they are not collecting more data than is necessary for recruitment and selection purposes. For example, motoring offence details will only be required from applicants that are applying for roles where driving is a particular requirement. During employment – a balance The DPA recognises that employers have certain legal obligations in relation to workers and employees and that these obligations necessitate the processing of personal data. Consent is not always needed to process employee data lawfully, but other obligations under the DPA still apply, including the security obligation in Principle 7. Extra caution needs to be taken when dealing with sickness records as they may constitute ‘sensitive personal data’, for which there is a higher threshold for processing under the DPA. The potential for harm resulting from accidental loss or damage to medical information held about workers and employees is great. As discussed in the last edition of let’s talk shop, awareness of obligations under the Data Protection Act (DPA) when dealing with customer and client data has increased following several high profile decisions of the Information Commissioner’s Office (ICO) - but what about employee data? Any business that engages workers and employees will also be subject to far reaching obligations under the DPA in relation to this information. Lifting the lid on employee data 9 let’s talk shop issue 18 Care also needs to be taken with employee monitoring: although the ICO recognises that business may need to monitor workers and employees for safety, performance or disciplinary matters, covert monitoring will only be justified in exceptional circumstances. At the very least, employees need to be told what their employer will be doing and why. Post-termination – be proactive Keep employment records in line with a document retention policy or standard retention period. Consider legal limitation periods (for example, six years for contractual documentation) and ensure that destruction or deletion of personal data is effected securely. If a third party organisation will be engaged to destroy personal data on the business’s behalf, it is highly likely that the employer itself will remain ‘data controller’ under the DPA – having a contract in place with any third party provider is crucial to apportion liability. Practical considerations Make sure that your organisation knows how to handle subject access requests (SARs), which can be raised at any time, and are not limited to the duration of the employment or customer relationship. A SAR could be sent to any part of your business (for example, HR or individual line managers), so you will need to know how to comply within the 40 day time limit. Be aware, too, that SARs may be made by third parties (such as occupational health practitioners), as well as staff or customers themselves. To that end, a SAR under the DPA is not limited to personnel or wages information, but might also include data that is commercially sensitive or that relates to your corporate entity. Knowing what falls within the scope of a request is key. Decisions to monitor employees should be taken at sufficiently senior level and access to monitoring data restricted to those that absolutely require it – businesses need to limit the potential for unauthorised or unlawful processing, and accidental loss and destruction of personal data. A clear and consistently applied policy is key, as well as training to ensure that employees are aware of obligations under the DPA. In the event of a security breach under the DPA emanating from an employee, a business must be able to show that it has provided DPA training, and taken other measures to safeguard personal data from a business standpoint. A serious approach to data protection must be demonstrated and may be a mitigating factor in the event of ICO sanction. The ICO has the power to impose monetary penalty notices of up to £500,000 for breaches of the DPA, as well as powers to prosecute and issue undertakings and enforcement notices. In the context of the forthcoming EU General Data Protection Regulation (which will mean more stringent data protection obligations, increased fines and a wider definition of ‘personal data’), a heightened awareness of data protection by data subjects and several high profile ICO decisions, employers need to have a keener sense of obligations under the DPA when handling employee data. Employers would be well advised to act now to tighten up their data protection procedures so that when the EU Regulation takes effect, which is expected to be as early as 2017, they are already taking a proactive approach to compliance. If you would like any further information or advice relating to any of the issues discussed in this article, please do not hesitate to get in touch. Clare Edwards firstname.lastname@example.org 10 Offers to settle – changes on the horizon The rules governing offers to settle under Part 36 of the Civil Procedure Rules 1998 (CPR) were amended on 6 April 2015. The changes affect all parties engaged in litigation, and are therefore of particular relevance to retailers and insurers facing claims. Kendrah Graham, retail claims lawyer, provides an overview of the changes introduced by the Civil Procedure Rules Committee so that you can continue to take advantage of the protection that Part 36 can provide. Part 36 contains a set of rules aimed at encouraging parties to settle their disputes. It imposes sanctions where a party refuses an offer to settle made under Part 36 but then seeks to accept the offer much later, or fails to get a better result at trial. The rules surrounding these offers can be complex, and while the rules work well in some scenarios there has also been a great deal of criticism of late. As a consequence, Part 36 has been amended and the new provisions will apply to all offers made on or after 6 April 2015. The amendments aim to simplify the rules and clarify the ambiguity in how it is applied. Time limiting offers Under the current rules, an offer which limits the time it is available for acceptance cannot be a Part 36 offer. The new rule allows for an offer to be automatically withdrawn or amended after a set date or specific event. This may encourage more strategic offers made for time limited periods, but as with any Part 36 offer, once withdrawn that offer will no longer carry the costs protection that makes Part 36 so attractive in the first place. Improving offers In matters where an offeror changes the terms of an offer to make it more advantageous to the offeree, it will be treated as a new offer. The new Part 36 states that these offers ‘shall be treated, not as the withdrawal of the original offer; but as the making of a new Part 36 offer on the improved terms’. This means that the original offer will still remain available for acceptance unless expressly withdrawn, and with it the costs protection for that offer will still apply. This amendment aims to avoid any confusion when an improved offer is made as to whether or not the later offer stands alongside or replaces the earlier offer. Costs budgets Under the current rules, if a party fails to file a costs budget in time it is treated as having filed a budget limited to court fees only. In these circumstances, there is little incentive for an opponent to settle in the face of a Part 36 offer from a party in default as their costs risk would be minimal. 11 let’s talk shop issue 18 The amendments address this difficulty by providing that a party who fails to file a costs budget in time will, for the purposes of Part 36, be able to recover 50% of the costs that would otherwise have been recoverable had they complied. In other words, they will not be limited to court fees only. However, this will only apply to costs incurred from expiry of the relevant period. Where it is the claimant in default and the offer is accepted within the relevant period the new rule does not allow the claimant to avoid the limitation to court fees. Genuine offers The new provisions will scrutinise whether an offer is a genuine attempt to settle. This amendment aims to avoid tactical offers being made simply to secure a costs advantage, such as claimant offers for the full value of the claim. Under the new Part 36, only genuine attempts to settle will afford the offeror cost benefit. Appeals Part 36 offers can be made in appeal proceedings, and the new provision clarifies exactly how it will apply to appeals. A Part 36 offer made in the initial proceedings will carry costs consequences only for the proceedings in which it was made, and these consequences will not carry over to the appeal. For a Part 36 offer to affect the costs of the appeal, a fresh Part 36 offer will need to be made. Split trials A lot of case law has highlighted the difficulties which arise from the application of Part 36 in the context of a split trial or trials of preliminary issues. The new provisions allow the judge to be told of the existence of, but not the terms of a Part 36 offer after judgment has been given on a preliminary issue (unless the Part 36 offer relates only to the issues that have been decided). The parties cannot reveal to the court any details of Part 36 offers which relate to the remaining unresolved issues which would include global offers to settle although they can confirm an offer does exist. Counter claims The new provisions confirm that Part 36 will apply to additional claims and counter claims. The counter claimant making an offer will be able to rely on the consequences applicable to claimants’ offers, including the entitlement to costs if the offer is accepted. Overall it appears that the Civil Procedure Rules Committee has addressed many of the issues that had arisen with Part 36. They have also improved the flexibility of the rules to deal with more complex issues however is Part 36 now more complex than it ever was? Regardless, it is imperative that anyone making Part 36 offers ensures that the offer complies with the new rules if they do not want to fall foul of the protection it affords. Kendrah Graham email@example.com let’s talk shop issue 18 The information and any commentary contained in this newsletter are for general purposes only and do not constitute legal or any other type of professional advice. We do not accept and, to the extent permitted by law, exclude liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. While every effort has been made when producing this newsletter, no liability is accepted for any error or omission. If you have a particular query or issue, we would strongly advise you to contact a member of the retail group, who will be happy to provide specific advice, rather than relying on the information or comments in this newsletter. Liverpool Manchester London Sheffield Piraeus Singapore Monaco Hong Kong hilldickinson.com/retail ® About Hill Dickinson The Hill Dickinson Group offers a comprehensive range of legal services from offices in Liverpool, Manchester, London, Sheffield, Piraeus, Singapore, Monaco and Hong Kong. Collectively the firms have more than 1250 people including 190 partners and legal directors. If you would like to know more about our retail claims services, or any other services we provide, then please visit our website or contact one of our retail team: Andrew Evans Partner, Head of Retail firstname.lastname@example.org Kari Hansen Partner email@example.com Kendrah Graham Senior Associate firstname.lastname@example.org Hayley Riach Senior Associate email@example.com Paul Edwards Head of Costs firstname.lastname@example.org Paula Leece Partner email@example.com Nerys Parry Partner firstname.lastname@example.org Events for 2015 Here are some of the events that we will be either hosting or attending through the next few months. Date Event Location 20 May 2015 FOIL Retail SFT Round Table Hill Dickinson, London 9 June 2015 British Retail Consortium Annual Retail Lecture 2015 The Willis Building, London 15-17 June 2015 AIRMIC Conference 2015 The ACC, Liverpool 25 June 2015 British Retail Consortium Symposium The Brewery, London Retail claims A study by Axa reveals that compensation claims against retailers have more than doubled in the last five years. The biggest three claims against retailers are for slips and trips, manual handling and faulty and defective products. It is thought that the crackdown on motor claims has driven claims management companies to target retailers. Not such a sore loser At the recent Academy Awards, held on 22 February 2015, nominees received a goody bag worth $160,000. The goody bag, ‘Everybody Wins at the Oscars Nominee Gift Bag’, included art, fine wine, jewellery, luxury travel vouchers as well as personal trainer vouchers, anti-ageing products, herbal tea lollipops and lean protein bars. Red Friday According to eBay, UK shoppers spent an estimated £1.9 billion on Valentine’s Day celebrations this year. In the three days leading up to Valentine’s Day, eBay registered more than 18,000 unique user searches including the word ‘valentine’ indicating that a number of gifts were bought at the last minute. Love it or hate it? This year saw the launch of Marmite and Pot Noodle flavour Easter eggs. Intended to ‘broaden the appeal of Easter’ the Marmite egg was marketed as a ‘Yeaster’ treat, not that anyone was ‘egg-cited’ by that! From slips and trips to Easter treats, we bring you the latest in retail news.