Saturday, August 8, 2020

Coronavirus: Millions for small business 'sitting in council accounts'




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More than £12.3bn was given to local authorities to pass on to eligible small businesses across England

Emergency coronavirus funding for firms will go back to the Treasury at the end of the month if it is not claimed, business leaders have said.

Four months after £12bn was released to help them through the coronavirus pandemic, £1.5bn is unclaimed.

The Federation of Small Businesses (FSB) warned the money was sitting in councils’ bank accounts.

The government said it was working with councils to reach eligible businesses.

Emergency grants for businesses in England were announced on 17 March.

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A month after the schemes launched nearly 500,000 businesses had received a grant

Lump sums of £10,000, through the Small Business Grant Fund, and £25,000 through the Retail, Hospitality and Leisure Grant Fund, were intended to help businesses’ cash flows during the coronavirus pandemic.

‘Restrictive criteria’

As of 3 August, £10.8bn had been paid out to nearly 900,000 businesses, leaving £1.5bn yet to reach nearly 80,000 eligible firms by late August, according to official data.

The figures suggest more than one in five businesses in areas such as Wealden, South Lakeland and South Somerset have not claimed grants.

Of the 314 English councils distributing the money, 291 have at least one business entitled to support that has not received it.

The figures also suggest there are 24 authorities that paid out more than they were allocated. Westminster City Council paid £17m more than it was allocated.

Mike Cherry, chairman of the Federation of Small Businesses, urged firms to apply for the grant funding, but added it should not be returned to the government if it was not claimed by the deadline.

“There are many small businesses who aren’t eligible, so the government should widen the criteria to those on the periphery,” he said.

He added the money would be a “Godsend” for businesses left out by the “restrictive criteria” for the grant, such as firms in supply chains to other small ventures.

‘Sitting in the council’s bank’

Wirral Council held £14.7m of unspent funding as of the end of July.

Councillor Ian Lewis said: “From my discussions with business owners and shopkeepers in Wallasey, some do not realise that this is a grant, not a loan, so it doesn’t have to be repaid. Even businesses that were able to stay open are eligible.

“It would be tragic if businesses close or jobs are lost because they do not apply for this money – it’s literally sitting in the council’s bank waiting to be claimed.”



Who is eligible?

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Places like shops, live music venues, gyms or hotels are eligible for grants, and many others

Businesses can apply for one of the following funds:

  • For the small businesses grant they must be based in England, occupy property for business use and have been eligible for relief on various rates by 11 March 2020.
  • To access the retail, hospitality and leisure grant the business must be mainly used as a venue for hospitality, retail or leisure. Some charities can also apply.


Brent Council in London said it was telling businesses in “any way we can” about the grants, as the borough did not want to hand back any of its £4.5m remaining funds to the government.

Councillor Shama Tatler said it was “a surprise” the government was looking to “end the schemes and demand the money back”, before all eligible businesses had been contacted.

“We now even have a team of officers physically knocking on people’s doors and urging them to claim before the deadline,” she said.

A spokesman for the Department for Business, Energy and Industrial Strategy said: “We are working with local councils to ensure funds get to as many eligible small business owners as possible.

“Businesses that are eligible but have not yet received grant funding should speak to their local council as soon as possible.”

Additional reporting by: Anna Khoo and the Local Democracy Reporting Service



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‘One of the most difficult decisions’: UK won't renew furlough program beyond October despite w…



UK Chancellor Rishi Sunak has said a popular program to support furloughed workers amid the Covid-19 outbreak cannot last indefinitely. The opposition warned that many people will lose their livelihoods unless it is extended.

Under the program, which launched in April, employers can apply for grants to cover more than half of the wages of employees they were forced to furlough because of the lockdown. The scheme was later renewed until October 31 and has helped to retain 9.6 million jobs, according to government data. However, the program will not be extended any further, Sunak told BBC Radio Scotland.

It’s wrong to keep people trapped in a situation and pretend that there is always a job that they can go back to.

The chancellor said earlier on ‘BBC Breakfast’ that not prolonging the job retention scheme was “one of the most difficult decisions” he had had to make.

I think most reasonable people will say ‘gosh, that’s not something that can carry on forever.’

“In common with almost all countries around the world … their versions of this are slowly being wound down toward the end of the year,” Sunak said.




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The government has been under pressure to renew the program beyond October amid growing fears of a wave of job losses in the autumn. They are coupled with anxieties over a second wave of coronavirus infections, with the next planned phase of easing quarantine restrictions postponed last week due to the daily increase in Covid-19 cases.  

Scotland’s Economy Secretary Fiona Hylsop argued that the scheme, which has proved to be vital for workers and businesses alike and “undoubtedly helped save lives,” should last longer in some parts of the country.

In a similar vein, Labour Party MP Ed Miliband warned that the government would be “culpable for thousands of workers across the country losing their jobs and livelihoods” if it ends the job retention program prematurely.




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London-based think tank the National Institute of Economic and Social Research advised that the government extend the scheme until June 2021. The institute’s Deputy Director Garry Young said that shutting down the scheme prematurely would be “a mistake” that would increase “the probability of economic scarring.”

Sunak, meanwhile, rolled out a plan to give businesses a one-off bonus of £1,000 ($1,308) for each furloughed worker who is still employed as of January 31, 2021. The government also plans to launch a £2 billion ($2.6bn) scheme to support creating “hundreds of thousands” of jobs for young people.

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A Cautionary Tale: Employee Misconduct Creates Employer Liability – Litigation, Mediation & Arbi…



Canada:

A Cautionary Tale: Employee Misconduct Creates Employer Liability

07 August 2020


Siskinds LLP


To print this article, all you need is to be registered or login on Mondaq.com.

Consider this scenario: An employee steals co-workers’
personal information and uses it in an attempt to blackmail his
employer, threatening to release it publicly unless a ransom is
paid. Who’s stuck with the liability in this story? You may be
surprised.

Grossman v. Nissan is a class action in which
the representative plaintiffs are Nissan employees whose personal
information was used by their co-worker (who has never been
identified and is therefore referred to as the “unknown
employee”) in his blackmail scheme. It appears very little
information was stolen and none was released to third parties.

However, the plaintiffs claimed four causes of action against
Nissan: (a) vicarious liability for the unknown employee’s
intrusion upon their seclusion (effectively a breach of their
privacy); (b) breaches of provincial privacy statutes; (c)
negligence; and (d) breach of contract. They indicated that, if
certification of the vicarious liability claim was successful, the
statutory claims would not be pursued.

The plaintiffs argued that Nissan had a responsibility to
protect their information, that the tort of “intrusion upon
seclusion” has been recognized by the Court, and that symbolic
or moral damages can be awarded even if no financial or
out-of-pocket losses are incurred.

The Court certified the class action, stating “I cannot say
that the plaintiffs’ vicarious liability for intrusion claim
has no chance of success.” The negligence claim was also found
to disclose a cause of action.

Of course, this is not the end of the story. If the action goes
to trial, Nissan could be successful in defending the claims. Some
international precedents suggest that this outcome is
possible.1

However, in the meantime, the Superior Court’s application
of the principle of employers’ vicarious liability in
situations like this – a rogue employee deliberately
instituting a data breach – should cause employers to tread
carefully in permitting access to sensitive data. Only trusted
employees with a genuine need-to-know reason should be granted such
access.

1 E.g. Various Claimants v. Wm Morrisons
Supermarket PLC, [2017] EWHC 3113 (Q.B.); aff’d
[2018] EWCA Civ 2339 (Eng. C.A.); rev’d [2020] UKSC
12.

Originally published 30 July, 2020

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from Canada

Case Study: Grossman V. Nissan Canada

Field LLP

An employer who is innocent of negligence or other misconduct can be vicariously liable for the tort of intrusion upon seclusion based on a data breach committed by one of its employees



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Phone: 020 8347 6640
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Fury as Birmingham Magistrates staff diagnosed with Covid – but courts remain open – Birmingham Live


Two Birmingham Magistrates Court staff members have been diagnosed with Covid-19 – yet the building has remained open to the public.

Sources claim that the workers had the coronavirus confirmed last week but other employees at the Corporation Street site say they were only told on Monday this week.

The court has been undertaking deep cleans and contact tracing is underway for those who may have come into contact with the employees.

It is understood a number of other workers are also being tested for coronavirus.

A source close to the court questioned why it had not been closed after the cases were confirmed to protect staff and members of the public.

“The court has not closed at all,” they said. “Areas were cleaned whilst open, these would be court rooms and offices the two staff were in.”

They added: “It should have been shut at least for this week until all test results were confirmed as negative

“I’m not saying the two confirmed cases are at fault, I believe they both went home as soon as they were unwell last week.

“But management should have done more, they could be putting others at risk.”

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The magistrates is set in the Victoria Law Courts, a Grade I listed building and has 23 courtrooms in operation at any one time. There are understood to be around 80 administrative staff, 40 legal workers and ten security personnel in the building, as well as lawyers and probation staff.

The court was closed at the start of the coronavirus pandemic but later opened to operate a smaller service, with full social distancing inside the building.

JS171008267.jpg 

We all want to feel safe in our homes and streets.

So it’s important to know what’s going on and what is being done about it by police and the criminal justice system.

Large, highly populated urban areas like Birmingham and the wider West Midlands always have plenty happening with crime reports and court hearings.

You can get the very latest crime news as well as information on court cases in our BirminghamLive daily newsletter.

Sign up here or fill in the box at the top of the article.

It has all the latest updates from police and local magistrates courts and crown courts.

We also have a free app which you can download to get the most up-to-date news from across the region. Find it on Google Play Store and App Store

A source said visitors to the court were not being informed of the situation.

“All they have done is reduce the court’s sittings this week but the building is still open with people coming and going. Have they contacted all the people who were in contact with the confirmed cases last week? I bet not! Why isn’t the public being told?”

A Ministry of Justice spokesman said: “In line with public health advice, a number of courtrooms were deep-cleaned after two staff members tested positive for Covid-19. There have been no other reported cases.”



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Thursday, July 23, 2020

Group claims law changes litigation landscape in Scotland – Out-Law.com


This new approach is likely to be particularly attractive to individuals with lower value claims who might otherwise consider it too costly to litigate on their own. Potential litigants will now be able to join a group proceedings case in the Court of Session in Edinburgh in a cost effective way. However, corporates and their insurers, which may be targeted by group claims, will be watching keenly as groups seek to utilise the 2020 Rules to gauge how the court approaches and applies them in practice. There are lots of procedural questions to be addressed and ironed out as the court and parties gain operational experience of this new procedure and significant conceptual change to what has gone before.

As with class actions in other parts of the world, for example the US, the rules provide for participation in group claims by ‘opt-in’ only. Under this model, parties must consent to become part of the group. Court determinations on the proceedings will only affect the group to which they relate and not those who have left the group before the determination was issued. Litigants joining the group will be bound by all previous determinations affecting the group.

The court will appoint a representative party for the group proceedings. Certain criteria must be met by a person wishing to be the representative party, including that they are able to satisfy the court that they “would act fairly and adequately in the interests of the group members as a whole, and that the applicant’s own interests do not conflict with those of the group whom the applicant seeks to represent”. The representative must also have sufficient financial resources to meet any awards of expenses. Those defending group claims must be advised of an application to be a representative party and be given an opportunity to indicate opposition to the appointment.

The court must give permission for matters to be raised as group proceedings. In terms of the 2018 Act, permission may be granted where the court is satisfied that all of the claims made in the proceedings raise issues, whether of fact or law, which are the same as, or similar or related to, each other and that the representative party has made all reasonable efforts to identify and notify all potential members of the group about the proceedings.

Further guidance on what amounts to “the same as, or similar, or related” is not given in either the 2018 Act or the 2020 Rules, but the definition is potentially wide ranging and could raise more questions than it answers as it currently stands. For example, it is not currently clear how matters will proceed if the similarity is in law but not fact, nor how individual issues will be resolved once the group issues have been determined. In England, a case by case approach is usually adopted.

Whilst the 2018 Act sets out criteria on where permission for group proceedings may be granted, the 2020 Rules provide for when permission may be refused. These include where a ‘prima facie’ case has not been demonstrated and where it has not been demonstrated that it is a more efficient administration of justice for the claims to be brought as group proceedings rather than by separate individual proceedings.

Again, the defender must be told of the application for permission to raise group proceedings and given an opportunity to make representations in relation to it. Either party may appeal against a grant or refusal of permission.

Whilst the 2020 Rules answer some of the issues left open by the provisions of the 2018 Act, questions remain and organisations will be watching carefully to see how matters are interpreted by the courts in practice. The retention of the ability of the court to make such orders as it considers appropriate to ensure the efficient running of the case is particularly welcomed.

Co-written by Hannah Beaumont of Pinsent Masons, the law firm behind Out-Law.



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INSIGHT: Clients Need Help Managing Contractual Relationships During Covid-19 – Bloomberg Law


It’s become an industry consensus that disruptions of Covid-19 will cause numerous contract disputes. Law firms have put up Covid resource webpages demonstrating their expertise on contract matters; litigation funders are seeing a surge in funding applications regarding contract disputes; and on a personal level, most attorneys know someone working around the clock to advise clients on contract matters.

Lawyers can bring much more value to their clients than simply initiating or fending off contract disputes. It’s time that commercial attorneys leverage their expertise to proactively help clients review contracts that are not immediately at risk, smooth out business relationships strained by contract disputes, and plan for the long-term costs of Covid-induced contract disruptions.

Proactive Review of Contract Inventory

While many commercial litigators are already strategizing with their clients on resolutions for the contract breaches at hand, it is also important to consider the other contracts in their inventory. It is precisely those contracts that are not immediately in danger of delay or cancellation that present the greatest opportunity for transactional lawyers to make a difference in their clients’ businesses.

By conducting a proactive review of the clients’ contract inventory, lawyers can help clients identify and manage potential risks in the future. For example, in a disrupted global supply chain, delivery of manufacturing parts can be delayed due to Covid.

Naturally the first response from the client and their lawyer would be to find a resolution for the breached contract. But it would also serve the client to review their agreements for the other orders for the next 12 months.

Relevant questions in this scenario include:

  • What contractual obligations and provisions do the future contracts specify? How could the client remediate disadvantageous provisions that now seem apparent?
  • What alternatives does the client have that would minimize the risk of contract breach? Should the client renegotiate the said future contracts?
  • Should the client include language saying that COVID is a foreseeable situation that would not be included in any force majeure clauses?

While answers to the above questions vary from client to client, attorneys who ask these questions can play an important role in ensuring the client’s business continuity. By initiating a proactive review of the client’s contract inventory, a transactional lawyer may bring additional business value to their practice.

Litigation as a Business Tool

As suggested by the current surge in commercial litigation, many attorneys are now preoccupied with helping their clients navigate contract disputes. With the stress of litigation weighing on everyone involved, lawyers will reasonably de-prioritize the review of future contracts and focus solely on the imminent litigation.

This is not to say, however, that transactional lawyers do not have any additional values to offer in a litigation setting. On the contrary, transactional lawyers have a unique insight to help clients reduce the friction litigation imposes on business relationships, and it starts with a paradigm shift to see litigation as a tool in their toolbox, but not the only instrument.

Litigation is often seen as an aggressive act relating to some personal animus, but it is important for business owners to understand that litigation does not indicate spite. Rather, it is a business means often used by a smaller party who wishes to address complaints in a more formal way.

Jonathan Polak, litigation partner at Taft Stettinius & Hollister, made a similar point in a podcast interview with Legalist. He said, “Litigation is just a tool to get to the necessary business transaction that needs to occur. If we as litigators look at litigation that way, then we are doing our clients a greater service than looking at it purely through the legal landscape.” Polak’s perspective on litigation rings especially true in the context of contract disputes, given the fact that many contract cases are filed with the intent not to terminate, but to renegotiate the underlying contracts.

If clients can see contract litigation as a means to an end, not an end in itself, then it is much easier to maintain business relationships amid contract disputes. As clients’ trusted counsel on contract matters, transactional lawyers have a unique opportunity to help clients understand the business logic behind litigation and enable the clients to evaluate their existing partnerships in a more objective way.

Long-Term Cost Management

Commercial litigators may provide additional value to their clients by initiating a discussion on the clients’ long-term legal costs. Clients require clarity around the financial impact of litigation, but the current economic uncertainty makes cost management a top concern.

Together, attorneys and clients can determine the economics of their specific contract cases, and strategize for an optimal financing approach. Factors to consider may include legal fees for prolonged litigation, potential insurance recoveries, and long-term revenue losses caused by the contract breach.

This type of assessment is a common practice for attorneys working with contingency agreements, but it is worth mentioning still because it enables clients to approach long-term business planning with legal costs in mind.

If the accounting shows the client in stellar financial standing, then it provides additional confidence in the case. However, if the accounting reveals a financial vulnerability, then an early assessment will afford the client sufficient time to seek alternative financing options, whether it is traditional bank loans or litigation funding.

Either way, helping a client entangled in contract disputes better manage their legal spending is a very valuable deed, and contributes significantly to the client’s business continuity.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Curtis Smolar is the general counsel of Legalist with over 20 years of litigation practice. Previously, he was a commercial litigation partner at Fox Rothschild LLP, an Am Law 100 firm, representing clients such as Paypal, Ebay, and Bank of America.

Robbie Li is a marketing assistant at Legalist. He researches and writes about litigation finance, litigation trends, and legal careers.



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John Lewis store closures: A full list of UK shops closing across the country

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