Author Archives: Mark Anderson

About Mark Anderson

I am an English solicitor (attorney) who qualified originally as a barrister in 1983. After working as an in-house lawyer and with Bristows in London, I formed Anderson & Company (now Anderson Law LLP) in 1994. Our offices are based in Oxfordshire, on the banks of the River Thames, 50 miles west of London. Outside work, I enjoy walking, swimming and canoeing. I met my wife Sara whilst cycling from Land's End to John O'Groats (1,100 miles) in 1991.

Backdating contracts can be a crime

This very old golden oldie came into IP Draughts’ mind today as a result of a news report in today’s Law Society Gazette that a solicitor had been struck off for backdating a document. So there is another reason for not misdating contracts!

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A BBC report on the Dominique Strauss-Kahn story today states:

Mr Strauss-Kahn’s apparent decision to fight the case echoes an earlier episode where he chose to tackle a legal problem head-on.  In 1999, he resigned as France’s minister of economy and finance, to focus on his defence against an accusation that he backdated documents to justify his consultancy fees for work on a student health insurance fund.  He was acquitted in 2001.

Further information on this story appears in a Los Angeles Times news report here.

IP Draughts is unfamiliar with the French law on backdating documents, but can provide some insight into English law in this area.  Section 1 of the Forgery and Counterfeiting Act 1981 provides:

A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and…

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Incorporation by Royal Charter: more classy than a conventional company

This week’s golden oldie is about bodies incorporated by Royal Charter. A practical tip for these, is that when they execute deeds, they need to apply their seal, unlike Companies Act companies and individuals. This is sometimes overlooked in the draft deeds of assignment that IP Draughts receives from City law firms.

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IP Draughts’ attention has recently been brought to a fascinating document: a complete list of the bodies incorporated by Royal Charter in the United Kingdom, as set out on the Privy Council website.  Thanks to Sean Cummings of Keltie and Tom Sharman of Reddie and Grose for pointing out this list.

To his shame, IP Draughts was surprised to discover that the Privy Council has a website, and even more surprised to find that it provides commercially-useful information in a convenient, spreadsheet format.  In IP Draughts’ mind, the Privy Council is associated with the court of Henry VIII or Elizabeth I.  It jars to think of such an august and ceremonial body making use of modern technology

The information is not as arcane as it may seem. Most, if not all, of our UK university clients are incorporated by Royal Charter.  When entering into a contract, it is important…

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Choice of contract law in light of Brexit

IP Draughts has just returned from a pleasant few days spent in Paris, where he chaired the third annual meeting of BioLawEurope FmbA, a not-for-profit association of specialist life science lawyers across Europe, who mostly work in small firms. In the last 3 years, we have referred dozens of projects between members of the association. IP Draughts’ firm is currently working on a regulatory matter that was referred to us by the German member of the network, and a commercial matter referred by the Danish member.

During our annual conference we have presentations on various topics. One that has stuck in IP Draughts’ mind this year was on choice of law and jurisdiction. When negotiating parties are based in different jurisdictions, they often need to find a compromise jurisdiction on which both of them can agree. Apparently, English law and jurisdiction has been a popular compromise choice, but is currently less popular for some of the BLE members, due to uncertainty over Brexit. Specifically, will there be mutual recognition of judgments between the UK and EU countries after Brexit?

IP Draughts thinks it is likely that the UK and EU will negotiate mutual recognition as part of the Brexit negotiations. Although the UK government is playing its cards very close to its chest, there is some ‘mood music’ to suggest that it recognises the importance of maintaining the reputation of England and Wales as a jurisdiction of choice. This seems to be a relatively uncontroversial topic where common sense would suggest that arrangements similar to those currently applicable (under Rome and Brussels regulations) will be agreed.

However, just because something makes sense and is uncontroversial is no guarantee that it will be negotiated, given the extraordinary times in which we live, so IP Draughts understands the short-term concerns that were expressed at our Paris meeting.

Part of our discussion was about the features of litigation in different jurisdictions. This discussion left IP Draughts feeling that, recognition issues apart, England and Wales had much to recommend it, including:

  1. A summary judgment procedure to get rid of spurious cases (unlike, it seems, France).
  2. Disclosure (also know as discovery) procedures to obtain access to the internal documents of the other party (unlike most civil law jurisdictions).
  3. Oral advocacy and cross-examination of witnesses, which tests the strength of the case in court, rather than relying mostly on written submissions (unlike in most civil law jurisdictions).
  4. A judiciary made up of experienced advocates, rather than career judges.
  5. A system of ‘without prejudice’ communications that are not disclosed to the court, and which facilitate freer communications in negotiations (unlike, it seems, Austria).
  6. The winning party usually gets a court order that most of its legal costs must be paid by the losing party. Apparently, in Austria, Germany and some other countries there is a tariff system which pays only a small proportion of the costs actually incurred. At the same time, for smaller cases in the Intellectual Property Enterprise Court, in London, there is a cap on legal costs of £50,000.

Other issues that we discussed included whether a non-English court would be willing to conduct the case in the English language, if the parties agree to do so. Apparently this is possible in Denmark but not in many civil law jurisdictions, where every document relied on must be  translated into the local language and certified to be an accurate translation, which can add considerably to a party’s costs.

Increasingly, IP Draughts is wondering whether Ireland might be an answer to some of these issues, bearing in mind that its legal system shares many features with that of England and Wales, particularly if the mutual recognition point is not dealt with in a timely manner.

But IP Draughts is crossing his fingers in the hope and expectation that all will turn out well in the next couple of years.

 

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Contract seminars over the next few weeks

IP Draughts will be running a series of one-day seminars at the UCL Faculty of Laws over the next few weeks. The full list and dates appear below.

Or, at least, they will run if we get sufficient numbers of bookings. Some, such as Advanced IP Licensing, and IP Terms in Research Contracts, always seem to be popular. Others, such as Introduction to Contracts and Advanced Contract Drafting, are less predictable in their appeal.

Which is a shame, as IP Draughts thinks they all provide lively and useful training for their intended audiences. Perhaps the UCL Laws mailing list, which is skewed towards IP practitioners in view of the popularity of IBIL (Institute of Brand and Innovation Law) events, doesn’t pick up enough general contract audiences.

Some of our courses run more frequently as in-house courses than as public courses. If you have at least 3 or 4 colleagues who want to join you in attending a course, it may be more cost-effective, and time-effective, for IP Draughts to visit you to give a seminar. In the last few months, he has given in-house talks to companies, universities and NHS Trusts, in locations as varied as Cambridge, Coventry, Eindhoven and London, and has discussed the feasibility of running seminars in Dublin and Edinburgh.

The next batch of courses will be:

25 May – Introduction to Contracts (designed for non-lawyers and trainees)

30 May – Advanced IP Licensing (for experienced practitioners)

6 June – IP Terms in Research Contracts (for lawyers and commercial managers)

13 June – Drafting Clinical Trial Agreements (for lawyers, commercial managers and trial managers)

22 June – Drafting Legal Terms in Commercial Contracts (for practitioners who want to understand better topics such as warranties, indemnities, entire agreement, law and jurisdiction clauses, etc)

26 June – Advanced Contract Drafting (for experienced practitioners who want to focus on improving their contract drafting generally)

Details of these courses, location and cost can be found on the UCL Laws website here.

UCL Laws is registered as a CPD provider with the SRA, Bar Standard Board and IPReg.

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