Author: Nathanael Young For years, the identity of Top Gear’s the Stig has been the subject of speculation and amateur detective work. Now, with publisher HarperCollins set to reveal all in a new book, the matter has been passed to the lawyers. The BBC has applied for an injunction to halt publication, and both parties were in the High Court on Monday over the issue. At present, further details of the case are hard to come by. It seems the BBC is alleging that the publication breaches confidentiality agreements entered into in connection with the show, and that HarperCollins is standing by its right to publish the mysterious driver’s story. No doubt more will emerge in due course, although how much depends on the outcome of the litigation. To the public, the interesting question may be the face behind the trademark black visor, but there are likely to be serious legal issues in a case of this sort. Secrets are not usually kept for long under the constant glare of media publicity; they have to be carefully guarded. There can be little doubt the BBC has given serious thought to the issue from Stig’s first appearance in 2003, or there would now be nothing confidential to protect. In English law, secrets of this sort will be protected by the law of confidence. To stop disclosure, someone will generally have to show the information is confidential in nature, that it was disclosed in confidential circumstances and that there is a threat to use it to their detriment. The best way to satisfy this test is by having a carefully drafted confidentiality agreement. In this case, HarperCollins is not likely to have received their information from the BBC, so there is unlikely to be a signed agreement. It may be the BBC will instead allege the publisher is obliged not to use information they received from the unknown driver, since they knew or ought to have known that was confidential. There is precedent for this; since when Michael Douglas and Catherine Zeta-Jones sued Hello! magazine for using unauthorised images of their wedding, there was again no confidentiality agreement between the magazine and the couple. In that case the source of the photographs must have been a guest or member of staff with a hidden camera. However, it was held that Hello! were liable for using the images obtained in breach of confidence. Cases of this sort may seem far from the world of business. However, all businesses will have confidential information about their processes, customers, suppliers and systems. Sometimes, this information can be the single most valuable thing the business owns. It makes sense to control and protect it, and this means carefully worded confidentiality clauses are a must. After all, some things are best kept under your hat – or helmet.

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The Stig Issue: BBC battles to keep driver veiled

Author: Nathanael Young   Attack and Counterattack Recent news stories have highlighted the lengths FIFA are prepared to go to in protecting its brand. Last Monday’s Holland v Denmark game saw 36 female supports wearing orange mini dresses participated in an ambush marketing stunt for the Dutch beer brand Bavaria. Ambush marketing, the practice of finding a way to promote a brand at a high profile event with out paying a sponsorship, has long been a marketing strategy of Bavaria. At the 2006 world cup in Germany, 1000 fans wearing branded underwear were denied entry to a Holland game, and more recently it has been targeting the Dutch national team matches. FIFA has promised to come down hard on any brand trying to highjack the tournament and this was the case last Monday. The group of women were ejected from the stadium and two of the 36 were later arrested. In addition to this, the ITV pundit Robbie Earl has been sacked by ITV as it has emerged that some of the tickets used by Bavaria were from the ex-Jamaica and Wimbledon midfielder’s  allocation;  which he was  prohibited from redistributing to third parties. Logo or No Logo With the world cup now in full swing, businesses around the country have included references to the event in their advertising and promotional activity in a bid to cash in on its popularity. Some of those are official sponsors, who have paid millions to be able to do so; however, a considerably large number of businesses haven’t paid for the privilege. They simply seek to associate their business  with the  pride and passion that the tournament evokes, with the ultimate aim of increasing sales. However it does come with some risks attached. Many business may not be aware of the extent to which FIFA have rights over and above ordinary trademark or copyright protection in South Africa.  FIFA has every motivation to stamp out such practices, which threaten the sponsorship revenues from their official partners. It already has trademark protection over a number of words, like ‘2010 FIFA World Cup’ and images, such as its official emblem for the tournament. The host country has gone so far to keep FIFA and its sponsors happy, it has created a new list of prohibited marks under special legislation, even including the use of ‘2010’ on its own, which is not a trademark.  For businesses operating in the UK, the situation is rather less draconian.  However,  there are reports that FIFA has obtained a ruling against a sports bar near the Loftus stadium using phrases such as ‘World Cup 2010’. Things to Remember…  The most important guidance is to always avoid the using of any FIFA artwork or branding – such as its logo or the ‘man kicking ball’ official 2010 world cup emblem. For more information and guidance about when you can cannot use World Cup related terms, FIFA has provided a Public Information Sheet which states what is acceptable and the terms of use. Use of the term ‘World Cup’ or similar phrases is less likely to be an issue, although each situation is different, so it is important to take legal advice in order to avoid prosecution.

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We Was Robbed – FIFA clash with the Ambush Marketers

Author: Guy Thomas A businesses relationship with its lender will always go through changes, particularly when the environment in which the business operates changes. Whilst we may wish it otherwise when borrowing, most lenders are very conservative organisations. As such they are more likely than not to react in specific and predictable ways to different stimuli. Put another way, whilst it pays to try and understand how your businesses lender operates, some things are always going to get a reaction and that reaction may be harsher then you anticipated or planned for. One such example is when businesses spring “surprises” on their lender. One almost universally accepted way to “fall out” with a lender is to surprise them with a major event without given them forewarning or without seeking their comments/approval. A bank recently stepped in before the owners of a company could sell their business (a wholesale bakery business) after they found out the shareholders of the company had tried to buy the company themselves for a significantly reduced price. The Sunfresh Baker which produces over 40million muffins for supermarkets and small shops each year, is a family owned business. It’s  Directors Mark and Stephen Taylor, who are also brothers, tried to buy their £9m turnover bakery for a mere £50,000 after struggling to pay creditors. However the abortive sale was halted when Israeli-based Bank Leumi discovered the chain of events and urgently placed the company into administration appointing an Administrator of their choice. It is believed that the directors, had not informed the bank’s UK asset finance arm about the transaction in advance, despite the bank owning a floating charge over the bakery’s assets.  In a bid to safeguard the position of creditors, Leumi appointed MCR as administrators. Following a second valuation by MCR on an “in-situ basis,” the Taylor’s were asked to pay another £70,000 for the business. The Taylors eventually bought the company for £120,000.  According to MCR documents, the brothers paid £35,000 as initial consideration and are due to pay monthly instalments of £5,000 until October to make up the full amount. A total of 167 creditors were owed £3.4m but it is not clear how much each will receive. Leumi, owed £1m for invoice finance, is expected to get its money when debts are collected. However Barclays, which extended £132,000 overdraft facilities; is less certain to see a return. A full report of the administration and conduct of directors is expected to be submitted to the Insolvency Service within six months. Prior to the insolvency the company last filed accounts for the year to the end of October 2008. These showed a pre-tax loss of £365,337 and it had net liabilities of more than £200,000. According to draft accounts, it made a profit of £1.1m on sales of £9.4m in the year to October 1, 2009. The sale of the business has saved 140 jobs at the company, which will now trade as Taylors the Bakers. Helpful hints for company directors and owners facing insolvency: Consult an insolvency specialist. Insolvency is a complex area with many pratfalls for the unwary. Taking advice at an early stage can help avoid the easy mistakes and help you plan the way ahead for yourself and the business Keep your creditors informed. If you don’t keep them informed then they will assume the worst and act accordingly, wouldn’t you? Review the circumstances regularly. Looking at it once and assessing the situation is not enough; having taken advice, mark out a plan, review the plan and ensure roles and responsibilities have been clearly set out within the management and encourage open discussion about how it is being implemented Keep a record for yourself. Sadly, although we hope for the best you must plan for the worst. Things can and do go wrong. If they do and your decisions are reviewed it will often be done several months hence and with hindsight. Keep a written record of your key decisions and the evidence you had to hand when they were made. Do not assume that record will be available to you in several months time Try to treat creditors equally. A common difficulty for directors in these circumstances is the pressure to treat some creditors better than others.  Although the pressures to do so will be great, you must always take advice before agreeing to this. It is a very common criticism for directors of insolvent companies and can even lead to personal liability No surprises…. As above, banks really, really hate surprises an act accordingly when they find out.

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Directors half-baked attempt at selling their business to themselves at a slice of the price

Author: Guy Thomas Yesterday the BBC broke news of the latest claims against Portsmouth Football Club. This week it’s Sol Campbell, the short lived Notts County player who was also recently reported as having signed a new deal with Arsenal FC. Click here to view the article on the BBC. Football clubs are no different to any other businesses in the need to keep a tight rein on their finances during a recession.What is “different” about them is the intense and sometimes intrusive public scrutiny that they are under compared to other companies of similar turnover. This scrutiny applies double if the team is not perceived to be performing on the pitch or the choices of the management are not supported by the fans. “Increasingly, matters off the pitch are taking centre stage in the media’s mind as they seek to tell the full story of what is taking place on it” says Paul McGoohan, Sports Director of Square1 Consulting , who have advised a number of Premier League and Championship Clubs. “The media’s thirst for information and the emotive subject matter mean that is essential for executives to get the right message into the public domain. Good legal and communications advice can help club executives in successfully managing this process and ultimately assist in not losing the public battle.” I agree with Paul’s points above; It is a truism of a financial downturn that when a company is perceived to be “in trouble” that its troubles are doubled. It is for this reason that football clubs and their stakeholders routinely employ PR consultants to work alongside their legal team during difficult times. My top tips (below) can apply to Football Clubs, but are also transferable to any business: 1. Communicate with stakeholders and creditors concisely and accurately. 2. Don’t hide - its not going away and may get worse if you do nothing. 3. Keep on top of the “message”; if you lose control of it then you risk losing your company’s goodwill and hard fought business relationships. 4. Take advice to address the root problems. Good communications can only buy you time. Use the time wisely to address the problems behind the immediate crisis. 5.  Act quickly – try to get your message in before the rumours start.  Efficient communications with stakeholders and creditors engenders trust and can provide a useful foundation when the time comes to implement solutions and take your company forward.

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Football Finances: Why legal advice and PR go hand in hand

Author: Guy Thomas “Moaners” who “lived in unrealistic Disneyland”. In typical headline-grabbing style, Alan Sugar, Lord of the Fired, Business Guru and government Enterprise Champion, was recently reported in The Times laying into owners of small businesses who have been blaming banks for their difficulties. It is unsurprising that his comments, made when speaking to a delegation of 300 small and medium business owners in Manchester, have come under fire from the Federation of Small Businesses, Politicians and  business owners themselves. It’s too early to tell if this “kick up the backside” style of motivation has had an effect on how these firms will approach their banks in the future, or how owners of small businesses will feel about Alan Sugar’s comments, but I can tell you that it is not a balanced view of the situation. It can be argued that Sugar is simply out of touch with the SME market . Through our involvement with a variety of business clinics, we see many viable small businesses befuddled by lending practices and unclear on the right formats and accounting information that the banks require. In this climate it should be a priority of the banks and the government to educate small business borrowers in the mechanics and realities of business loans and what funding options are available. Business Link plays a very positive part in meeting this need for education, as do some banks, but more can and should be done to encourage small business borrowers to be both smarter and more effective advocates for their businesses. Of course, there will always be firms that are too high risk to be safely lent to, and it would of course be irresponsible of the banks to do so. But there is a large number of the small businesses and start ups that we encounter and advise that are run by passionate, driven and motivated individuals, who have, for the most part, sound business plans and a solid offering. Many of  the businesses we are seeing aren’t going to their banks in need of a ‘life-raft’ or because they are bust or have mis-managed their business. They are going to the banks for financial support to fulfil orders, for a quick injection of cash that will allow them to eventually grow their businesses and are on balance a good long term investment. Alan Sugar also comments “I hate the use of this word cashflow in the sense in that it is a business problem”. What he is perhaps failing to understand is that “cashflow” in this economy is a business problem originated by issues in the supply chain and customer network, opposed to financial miss management. We are advising our clients to deal with these issue in their supply chain and customer network head-on, by making sure they have contracts in place and that they are enforceable. We are also advocating that our client be “customer careful” and  really get to know their customer base. But not simply as a way of strengthening their relationship or for business development but as part of their risk management strategy. By gaining a clear understanding of which organisations your customers supply and are dealing with allows you to expose potential areas of danger in your wider network. So would many of these “moaners” be better off in insolvency as Sugar a ledges? Well, insolvency is, and always should be the last resort. We have a large SME client-base, and have seen more recently an increase in insolvent businesses and even more “tittering on the brink”. The key to avoiding insolvency is to take action immediately, as soon as you feel their might be a problem. By working together with your Accountant and your Lawyer there are usually reasonable alternatives to simply “going bust” . No doubt Lord Sugar intended his comments to motivate as well as admonish, it’s just a shame he has chosen, on this occasion, not to act as more of an advocate for small businesses, after all the SME account for 99.9% of all enterprise in the UK.

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Small Business in ‘Disneyland’…

The justice secretary has apologised to the families of the two murdered French students for the ‘serious failures across the criminal justice system’ that left one of the defendants free to kill when he should have been incarcerated. Dano Sonnex and Nigel farmer were found guilty at the Old Bailey of the murders of students Laurent Bonomo and Gabriel Ferez. At the time of the murders Dano Sonnex was subject to a warrant for his arrest and recall to prison for breach of his probation licence conditions. read more

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Straw apologises for probation failings

Magic circle firm Clifford Chance will report a 5% fall in revenue and profits ‘significantly down’ on last year’s £1.33bn, according to the firm’s global managing partner David Childs. He said the firm will cut around 15% of its equity partners at the end of its ongoing staff restructuring. Childs’ estimates on revenue and profits are the first to come from a magic circle firm this year. He was speaking at the Global Managing Partners Summit 2009 in London yesterday. read more

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Clifford Chance to cut equity partners

Normally I steer clear of the heavier alcohol content wines but the other evening, doing my duty for my country and my new ‘career’ as a wine reviewer, I found myself working at my laptop and a bottle of Spier ‘Private Collection’ Stellenbosch Shiraz, 2005 from South Africa happened to be open on my right.  I enjoy South African reds.  They often have  strong nose, a bit of leg and taste good. Unfortunately, I did not check the alcohol content (15.5% – I rarely do).  This wine didn’t just have legs.  This wine played for the Springboks in the second row, had legs of thunder and a kick to match.  A delicious wine that made me ever more amused with life until I got up to answer nature’s call.  I realised that I had been drinking when I staggered into the bathroom and saw an apparition before me, Vercingetorix mustache bristling, eyes wide and smiling.  In fact, I will confess that I was singing the chorus from The Village People’s GO WEST at this stage. A fine wine indeed, but perhaps not a whole bottle on a modest meal of raw prawns and bean salad. Fortunately, ASDA sell it at £13.98 and I shall be buying some more very soon. For those of you who enjoy your wine being compared to christmas cakes – I can tell you that the wine is dark red in colour, heading towards plum, lightly spiced, perhaps a bit of cinnamon and had a smooth texture and after taste.  I could not taste any leather rugby ball – but it was probably in there somewhere. Spier Private Collection Shiraz, 2005 ASDA £13.98 (15.5% vol) Stars: ****

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Your head may fall off…

I woke at dawn on Saturday, full of the joys of Spring -  reborn from my new Smokedo regime and enjoyed a most amusing hour on The Telegraph website – taking in the detail of the claims being made by our representatives in Parliament.  What an excellent hour or so I had.  The ‘Best of the begging letters’ , the detail behind expenses being claimed by Cabinet Ministers from Friday’s edition and… today, lesser beings .  The sound of MPs saying, almost in unison, that ‘it was all within the rules’ and ‘ The Commons Fees office approved my expenses’ was like music to my ears. I was moved to do some Charon after a glass captions (below or here and here ) I know it has been done by the BBC and others, but I rather like the ‘On this day’ concept – so I am going to have one of my own – occasionally. On this 10th May day… 1291 – Scottish nobles recognize the authority of Edward I of England . As a Scot, Edward ‘Hammer of The Scots’ is not perhaps of great interest compared to Wallace but he did the business.  I am reading this excellent book by Marc Morris on the recommendation of John Bolch of Family Lore.  I don’t do book reviews, simply because I can’t drink a book. John did a rather good review some weeks back.  It is a fascinating book, well written and full of detail – great holiday reading? 1893 – The Supreme Court of the United States rules in Nix v. Hedden that a tomato is a vegetable, not a fruit, under the Tariff Act of 1883. Every schoolboy knows that botanically a tomato is a fruit, but is often percieved to be a vegetable… and the Suprme Court justices so held… so it is…. in the USA at least. And so to Cricket… Well… in the year we hope to win The Ashes , a good start with Mr Onions doing the business and giving hyperventilating punsters the time of their lives… my favourite, after we won …… from a fellow Twitterer was … “That Shallot for now…..” We won in some style… but nothing can compare with this picture from a Panamanian cricket match.  These girls spent much of the match prancing around in spandex whacking each other’s arses with cricket bats.  Used to happen at my public school all the time… but I shall draw a veil over that as former Lord Chancellor, Lord Falconer,  was at the school at the same time.  I don’t believe that he played cricket and it is unlikely he whacked anyone’s arse with a cricket bat.   A full match report for the Panama cricket match is available here. Hat Tip to @colinsamuels for pointing out this important cricket event to me. C haron hits Top 20 UK Twitterers?  Ridiculous… but I have done 18071 tweets or updates since June last year – I find this rather astonishing.  I may have to see my doctor. Amused to be in the list at Number 10 (appropriate in these political times)  Twitter Queen @infobunny shows us only where we can go and comes in with 30,000 + tweets!  Curiously Geeklawyer (who has, in fact, done more tweets than me – albeit over a much longer period) has been OVERLOOKED in this Top Twenty list.  What.. with being unfollowed by @Scottgreenfield on a daily basis and now this – no wonder he is entering into eating competitions with his mates at a Chinese restaurant.  I suspect his non inclusion in this list may have something to do with the fact that he is, in fact, The Prince of Darkness himself.  On the subject of Twitter… I appear, now, to be following Queen Rania of Jordon who is on Twitter …. well… makes a change from all the other Queens on twitter.  I shall probably *Unfollow* Queen Rania soon.. there is only so much Royalty nonsense I can take in this country, let alone other countries… would it be Twitter Lèse majesté ? As I plan to do a long post tomorrow and also do a podcast with Scott Greenfield – I shall bid you goodnight… I have a catalogue to pore over and just re-read all those wonderfully absurd details about the greedy ‘all within the rules’ porkers in The Cabinet and The Labour Party.  Tomorrow… The Telegraph promises further revelations.  I can’t wait to see what the Tories get up to.  I suspect that the Lib-Dems will be vaguely sensible… but we shall soon find out.  I leave you with this from The Telegraph…. MPs’ expenses: minister Kitty Ussher used allowances for £20,000 house make-over Kitty Ussher, a junior minister, wrote a letter asking if she could put a full re-fit of her run-down Victorian house on her House of Commons expenses.

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9-10th May: Postcard from John Lewis