CorporateFILE May 2010

200 Years of Serving the Community – The Brethertons story 1810 to 2010

In 2010 Brethertons LLP is looking forward to celebrating our 200th year in business. 

Our firm has been practising law for two hundred years, since 1810 when Count William Ferdinand Wratislaw (1788-1853), a Bohemian nobleman, began his legal practice in Rugby, Warwickshire, aged 22 years.

Our firm’s history starts in 1810, a year when King George III was on the British throne and when Francisco de Goya painted his famous self-portrait; when composer Frederich Francois Chopin was born and it was five years before Napoleon’s defeat at The Battle of Waterloo.

Our firm’s founder, Count William Ferdinand Wratislaw, was the third son of Marc Wratislaw (1735-1796), and it is William that founded his solicitor practice in Rugby – the forerunner of today’s Brethertons LLP. 

The Wratislaw family history goes back further than this, as William’s father Marc Wratislaw was a Bohemian descendent of John Wenceslau Wratislaw von Mitrowitz (Count Wratislaw). The Count had supported Prince Eugene of Savoy Carignan to rally reinforcements to fight in The Battle of Blenheim in 1704 in which the Duke of Marlborough, John Churchill, and the allied forces won and the French surrendered.  The Battle was a turning point in the War of the Spanish Succession and Blenheim Palace in Oxfordshire was built by the Crown as a gift to Marlborough to mark the importance of the success of the campaign.

John Wenceslau Wratislaw’s name might sound familiar as he was a descendent of “Good King Wenceslaus” or the Duke of Bohemia (907-935), who was the son of Wratislaus the First of Bohemia – Vratislaus I (888-912) and who had been a lawyer in his early years.  The lineage can be traced all the way back to Krok the Munificent (born 614AD) who founded the city of Krakow in Poland.

Most of the sons of the UK arm of the Wratislaw family have been educated at Rugby School and Oxford University, many have tutored or been past Masters at Rugby School like The Rev. Albert Joseph Wratislaw in 1809 (who lived in Clifton) and George Galbraldi Augustus Wratislaw in 1815, and many were trained as lawyers in the family firm:

• More about poet Theodore William Graf Wratislaw (1871-1933)
• More about Count William Ferdinand Wratislaw (1788-1853)
• More about Marc Wratislaw (1735-1796)
• More about Good King Wenceslaus (907-935)

Charles Edward Wratislaw (1826-1861) and Theodore Marc Wratislaw (1831-1919) went on to become solicitors and continued the legal practice, then known as Wratislaw & Thompson. It was Theodore’s second son, Marc Eugene T.G. Wratislaw (1879-1962) who took over the family practice.  The practice continued to grow and develop, as the town of Rugby has grown and developed before, during and after the war years, with Marc Eugene T.G. Wratislaw fighting in the Army and also receiving the Home Service Medal in World War I.  The firm has seen a few name changes since then:

• Wratislaw & Thomson 1860-1905  - Joined by Frank Thompson
• Wratislaw & Fuller  - By 1865 the firm was called Wratislaw & Fuller.  Frederick Fuller later dissolved his part of the partnership and his new firm became Frederick Fuller & Sons in Rugby.
• Wratislaw Dean & Bretherton - Re-named in 1928 - Marc Eugene T. Wratislaw and Charles Dean, of Pulman & Dean from Lutterworth (a firm acquired by Brethertons). Partners also included Arthur Augustus Bretherton, Bernard Crofts and Raymond Morris.
• Wratislaw Bretherton & Crofts - By 1933 the firm was called Wratislaw Bretherton & Crofts.
• Bretherton Crofts & Turpin  - By 1945 the firm was called Bretherton Crofts & Turpin, joined by Maurice Sherbrooke Turpin.
• Bretherton Turpin & Pell - Re-named in 1960 joined by Montague Noel Pell.  Richard Pell who is the senior partner at Brethertons LLP today, is the son of Montague Pell.  Partners included Richard Pell, Paul Smith, John Duffy, Tony Sutton, Christopher Pratt, Roderick Ross and Clifford Cooper.  This firm’s name continued until 1992.
• Brethertons  - The firm was re-named in April 1992.
• Brethertons - In 1995 Auld & Jardine, a Banbury firm, merged   with Brethertons.
• Brethertons LLP - Changed to LLP status in 2006.

Since 1900 there have been a few name changes of the firm and Brethertons was officially created under a single name in 1992.  In recent years, Brethertons has seen the most change, growing steadily and doubling in size in the past 10 years, introducing a strong corporate team providing advice and assistance to companies and directors, including a dedicated commercial property team.

In 1995, Rugby-based Brethertons merged with Banbury-based corporate commercial firm Auld & Jardine and this gave us a foothold into a second county, Oxfordshire, and further enhanced our commercial offering. Over half of the firm’s work is commercial in nature including litigation, commercial property and debt recovery.

The other half is advising individuals on private client matters including wealth planning, and family law.

The firm’s private client foundation is in the provision of quality legal advice to all sectors of the local community on issues affecting them. We have moved on from our historical roots of being the family trusted lawyer, but have still maintained complete focus on all round service delivery, whether this in times of bereavement or family discord, financial crisis accident or illness.

In Rugby and Banbury the firm has over many years had a well-respected, efficient client-friendly domestic conveyancing service. The firm adopted LLP status in 2006.

Brethertons LLP recognises the importance of our role in the communities we operate in.  We are proud of our legal roots and how the firm has continued through the ages, and how we have adapted and changed as the law itself has changed.  We are a firm that is passionate about our legal work for clients and our obligations to our community and we continue the charity-giving tradition started by Count Wratislaw.

Today, clients of the firm include well-known listed companies, owner-managed businesses, SMEs and individuals including, directors, accountants, IFAs, managers, those of high net worth and landowners.

Our firm has won many awards for client service, innovation and legal prowess and we are seen as ‘leading the field’ in the delivery of legal services using new methods of technology and online solutions.
It is all a far cry from 1810.

Brethertons scoops 4 Awards in a Week

Law firm Brethertons was recognised this week by winning no less than four awards including:

• Best use of IT and Communications Award – Coventry Telegraph Awards
• Solicitor of the Year – News on the Block Magazine
• Young Professional of the Year – News on the Block Magazine
• Litigation Team of the Year - Credit Today Magazine.
  

Enfranchisement Solicitor Yashmin Mistry won an unprecedented two awards at the News on the Block ‘Enfranchisement & Right to Manage Awards’ including: Solicitor of the Year and the Young Professional of the Year.  

The Property Management and Commercial Collections Teams received the award for Litigation Team of the Year at the Credit Today Awards, held at the Grosvenor House Hotel.  This award recognised Brethertons achievements in the field of  Commercial Recoveries and Property Management Litigation.

The Coventry Telegraph award for ‘Best use of IT & Communications’ recognised the marketing launch of the firm’s online legal services LawSense.co.uk, a new way of providing legal services to their clients.   Brethertons was also finalists for the ‘Contribution to the Community Award’ in recognition of the charity work the staff and partners undertake. 

Partner Shaun Jardine explains: “These awards stand as testament to the strength, experience, expertise and enthusiasm we have at Brethertons across a variety of specialism’s.  The whole firm  is delighted with this news – being market leaders in industry specific areas  ensures that our clients benefit from instructing lawyers who are recognised as leaders in their field.  This is wonderful news for Brethertons and great news for our clients.”

Brethertons Strengthens Commercial Property Team with Significant Partner Promotion

Regional Law firm, Brethertons LLP is pleased to announce the promotion of Tom Lawrence to Partner, strengthening 6 offices in Banbury, Rugby and London and bolstering ambitious plans for growth. The practice has now 10 partners and a total of 170 staff.

Tom joined Brethertons upon qualifying as a solicitor in 2002.  He provides legal advice and assistance to clients on all aspects of commercial property, in particular business property acquisitions and disposals, both freehold and leasehold.

Tom’s clients include property developers, investment companies, retail and distribution businesses and business directors.  Tom also advises on licensing matters that affect commercial property transactions.

Regional Law firm, Brethertons LLP is pleased to announce the promotion of Tom Lawrence to Partner, strengthening 6 offices in Banbury, Rugby and London and bolstering ambitious plans for growth. The practice has now 10 partners and a total of 170 staff.

Tom joined Brethertons upon qualifying as a solicitor in 2002.  He provides legal advice and assistance to clients on all aspects of commercial property, in particular business property acquisitions and disposals, both freehold and leasehold.  Tom’s clients include property developers, investment companies, retail and distribution businesses and business directors.  Tom also advises on licensing matters that affect commercial property transactions.

Senior Partner Richard Pell explains: “Tom has worked extremely hard over the past eight years, to develop and grow Brethertons’ commercial property offering.  His promotion underlines and shows the firm’s faith in his ability and business acumen.  This is a deserved acknowledgement of his efforts and successes to date.”

Commenting on his appointment as Partner Tom Lawrence said: "I'm delighted and very excited to be joining the Partnership in the firm's 200th year and to be given the opportunity to take part in the development of the firm and its continued success."

Personal information can now bite back!

For the first time in 25 years the Data Protection Act has some significant teeth.   From the 6th April 2010 the Information Commissioner has had the power to impose financial penalties, “Monetary Penalty Notices” or MPNs, of up to £500,000 for serious breaches of the Data Protection Act. 

With the Data Protection Act 1998 we are now on the second incarnation of the legislation since its introduction in 1984.   Many businesses are aware of their obligations to register with the Information Commission’s Office if they are processing “personal data” and their ongoing obligation to deal with such data in accordance with the “Eight Data Principles”. 

Many also recognised that if you didn’t comply with the Act then the Information Commissioner had minimal powers to inflict a serious penalty on the offender – not so anymore.

How will “Monetary Penalty Notices” or MPNs work?  If the Information Commissioner is satisfied that there has been a serious breach of the data protection principles and the breach is likely to cause serious damage or distress and was either reckless or deliberate then he can serve a “Notice of Intent” to the relevant “data controller”.  The Notice of Intent will detail the breach and the size of the fine to be imposed.  The data controller has an opportunity to make representations to the Information Commissioner about the breach itself and the size of the fine.  The Information Commissioner considers those representations and then must decide whether to proceed and serve the MPN or vary it.  A data controller can appeal an MPN to a tribunal.

As a result of this new set of teeth we have to look at the recent incidents of computers and memory sticks containing “personal data” being found in public places and consider that if the same were to happen again these would have probably resulting in an MPN being issued by the Information Commissioner.

With more and more business being undertaken over the internet with the retention of “personal data” as a by-product and more businesses retaining “personal data” for their marketing and development close consideration needs to be made on how such sensitive data is handled, processed and stored. 

It is important for businesses and organisations to review their business structures and the data handling processes.  This consideration should be based on a full risk assessment detailing what “personal data” they are handling and in what formats. 

Businesses should also consider as part of their Disaster Recovery Planning having a policy and procedure for dealing with serious breaches of the Data Protection Act.  Business could consider industry codes of practice which could (and should) be considered and adopted.

All this planning and policy will mean a business can show that although there has been breach they took all necessary precautions to minimise the risk and that the release of “personal data” was not deliberate or reckless. Such evidence will provide a means for supporting any representations which may need to made to the Information Commissioner.

At Brethertons we appreciate that retention of information and data is key to most processes within your business.  We have a team who can advise you on the issues relating to the Data Protection Act and any health check or review which you may want to undertake to ensure compliance and minimise your risks.

Discovering a Cover-Up – Tips for Directors

Dubious business practice will always exist but normally becomes more prevalent and is more often uncovered in times when business is tough. A director who discovers dubious business practices within his company can find himself in a difficult situation. This is especially common when a director finds that the true financial position of a company has been disguised.

What should you do if you find yourself in such a position?

Firstly, try to establish the facts of the situation and its impact and severity. Once that is known, consider the ethical principles which apply to company directors under the Companies Act and other legislation and your responsibilities as a director and under your contract of employment. Consider also your company’s corporate policies and procedures.

If necessary, clarify your obligations by speaking with colleagues and/or your company’s HR department. It is important when consulting with others not to breach confidentiality.

When deciding what to do next, taking legal advice is sensible. Taking the wrong action may have unpleasant consequences – however, doing nothing might be even worse.  Remember that it is against the law (under the Public Interest Disclosure Act 1998) for an employer to discriminate against an employee who makes a ‘protected disclosure’.

Duty of Care to Employees – Obvious Risks

Every employer owes a duty of care to its employees, but deciding who is responsible for an accident can be very difficult when the issue is whether warnings against risks should have been given or, if given, were adequate.

Employers often argue that employees are responsible for their own actions, but employers have a duty to warn employees of potential risks in the workplace, even if these are obvious. A recent case has confirmed that some risks are so obvious that warnings need not be given, for example where to argue a lack of awareness of the risk would be absurd. However, it is hard to distinguish between what would be deemed to be that obvious and what would not.

In the case in point, an employee turned a box upside down in order to reach material on a top shelf. The box slipped from underneath him, causing him to fall and sustain injury. The employee’s case failed both in the lower court and on appeal because the employer had specifically warned all employees that the use of boxes for this purpose was unsafe and had provided a safe alternative for reaching high items.

The Court of Appeal said that an employer is responsible for devising safe working methods and practices and, where they have issued a warning against a specific risk, they should not be held liable for an injury to an employee who ignored the warning. The judge commented that ‘some dangers are so obvious that no instruction is required’ but this would not have been the case in this instance. Had the employer not warned of the potential risks attached to using the box for this task, the argument that the employee was capable of appreciating the risk for himself would have been rejected.

What constitutes a sufficient warning is a grey area and is an issue of fact, not law, so previous case rulings provide little assistance as each case is judged on its own facts. In an unreported case, an employer was held to be liable for an injury sustained by an employee who had mopped a floor and then slipped on the wet surface she created. The employer argued that it was obvious that the floor would be wet immediately after mopping and that it needed to be dry mopped to be safe. This argument was rejected by the court, however.

It has been suggested that an employer is only under an obligation to warn employees of risks that fit within the broad remit of the employee’s job description. For example, if an employee were to put his fingers into an electrical socket, the employer would not be liable for the resulting injury as this was not a part of their ‘system of work’. In contrast, an employee who has been asked to rectify a paper jam in a photocopier should be warned of the risks. In some circumstances, an employer may decide to let experienced employees devise their own safe working practices in relation to certain tasks but, ultimately, it is the employer’s responsibility to assess and warn against workplace risks.

The best way to safeguard against potential claims is to warn against all potential risks, however obvious. Ensuring a full risk assessment of tasks is carried out and that all staff are trained properly is paramount.

Patent Stands Despite Disclosure of Art

The ruling in a recent patent dispute will give comfort to developers of products that are patented after the developer has already ‘let the cat out of the bag’.

The general rule is that a patent cannot be defended if the subject matter of the patent (the ‘art’) has become public knowledge before the patent application is made. In the case in point, a firm sought to fight an action for patent infringement on the basis that the prototype of the subsequently patented design for a folding stair had been shown to at least three members of the public and photographed by them and that a photograph had appeared in the press which showed the prototype in the background.

The defendant firm argued that the disclosure was sufficient to make the art public knowledge. The claimant firm argued that this was not sufficient: the three people who had seen the prototype had no special interest in the design or knowledge of the manufacture of the folding stair. They would not have been able to describe its particular features after seeing it.

The UK Patent Court upheld the patent.

This case is interesting as it runs somewhat counter to other decisions. An appeal must therefore be a distinct possibility. Even though this case turned out well for the claimant, it makes sound commercial sense to ensure that all intellectual property (IP) which needs to be formally protected (i.e. anything not copyright) is kept firmly under wraps until it is safe to make it public.

Want to Sack Your Auditor? Pause for Thought

If you are not seeing eye to eye with your auditor because their view of your financial statements is at variance with yours, and you are thinking of making a change of auditors, you should be aware that Sections 522 to 525 of the Companies Act 2006 set new requirements for auditors and companies to notify the ‘appropriate audit authority’ when an auditor ceases to hold office.

Furthermore, in certain circumstances, the auditor must inform shareholders and creditors of the circumstances under which they are ceasing to act.

The rules governing when a notification has to be made are complex, but guidance which makes useful reading for directors of companies in this position can be found at http://www.frc.org.uk/pob/regulation/notification.cfm. Note that both auditors and companies need to notify the ‘appropriate audit authority’, but there are significant differences in how the requirements affect auditors and companies.

Who is Responsible? Look at the Contract 

In a contract, who is responsible for what is determined by the wording – which is why it is crucial to get the wording right from the outset. In a recent case, a company bought oil on a standard FOB (free on board) contract.

The oil was of satisfactory quality when it was put on the ship, but not when it arrived in port after an uneventful passage at sea. The buyer held the seller responsible, implying a condition into the contract that the oil would be fit for purpose on delivery. The seller denied responsibility, pointing to a clause which excluded ‘all guarantees, warranties or representations, express or implied, of merchantability, fitness or suitability of the oil…’.

The case turned on the wording of the contract. The court ruled that there was an implied term (a ‘condition’) in the contract that the oil would be of satisfactory quality on delivery to the port after a normal passage at sea. The exclusion clause did not, as stated, exclude a change in quality of the oil. The effect of the condition was that the vendor was responsible for the oil failing to be of merchantable quality at the port of discharge.