The Future Lawyer Weekly Update – w/c 26th April

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Gig Economy

Court of Appeal Refuses Addison Lee Appeal, finding Drivers are Workers.

Reported by Jasmine Cracknell

Private hire firm Addison Lee has been refused permission to appeal a decision of the Employment Tribunal which found that its drivers are workers.

The original Employment Tribunal decision from 2017 was upheld by the Employment Appeal Tribunal in 2018, and the Court Appeal ruled on Thursday that the company cannot appeal again.

Addison Lee’s hearing was delayed pending the outcome of the recent Uber appeal, as both cases focus on the issue of whether drivers should be classed as workers and whether time spent logged into the app is classed as ‘working time’. You can read our summary of the Supreme Court’s Uber decision in our 1 March briefing here.

In the present case, Addison Lee argued that because drivers were not contractually obliged to log into the app and could effectively work whenever they wanted, they did not work under a contract and so could not be classed as workers under the definition of a limb (b) worker.

However, the Court of Appeal said that as soon as drivers logged into the system, there was a contractual agreement in force. The Court cited the Tribunal’s argument that once logged in, drivers ‘were undertaking to accept the driving jobs allocated to them. They were undertaking to perform driving services personally. No other conclusion is possible’.

The Court also agreed with the Tribunal on the issue of working time, which is defined in Reg. 2(1) of the Working Time Regulations as (“a) any time during which he [a worker] is working, at his employer’s disposal and carrying out his activities or duties …”. The Court of Appeal said that by being logged into the app, the drivers were at the company’s disposal and therefore carrying out their duties for the purposes of the Regulations. This was similar to the Employment Tribunal’s argument in the Uber case.

Law firm Leigh Day represented more than one-hundred Addison Lee drivers who joined the claim against the company. They say thousands of drivers could now be entitled to an average of £10,000 in compensation, however Addison Lee will only be required to compensate those who have joined the claim.

The firm is also representing couriers from delivery company Stuart in a similar claim. Stuart has secured a hearing at the Court of Appeal for October 2021 to appeal a 2018 Employment Tribunal decision that one of its couriers was a worker.

Liana Wood, employment solicitor at Leigh Day said: “This decision follows hot on the heels of the landmark Uber judgment in the Supreme Court. At Leigh Day we hope that other companies with similar business models to Uber and Addison Lee recognize that they cannot continue to deny people basic rights such as holiday pay and the national minimum wage.”
Addison Lee has 28 days to appeal to the Supreme Court, but it is not expected to do so.

Find out more here and here.

Case Law

Colin v Cuthbert: The Legal Battle of the Caterpillar Cakes

Reported by Eleanor Aindow

The legal battle of the caterpillar cakes, coined ‘Colin v Cuthbert’, has taken the social media world by storm in the past week after news broke that Marks & Spencer (M&S) issued proceedings in the UK’s High Court to protect its caterpillar cake, Colin, against Aldi’s, Cuthbert.

The legalities in this case relate to intellectual property infringement. In 2009, M&S registered trademarks for its caterpillar cake including the name ‘Colin the Caterpillar’ and its packaging design. Although other supermarkets in Britain, including Waitrose, Tesco and Asda, supply caterpillar cakes similar to M&S’s, M&S are reportedly concerned that Aldi’s product, Cuthbert, bears so much resemblance to Colin that consumers could be confused into thinking that the products are the same.

M&S’s justification for bringing the case solely against Aldi therefore arises from the very distinct similarities between Colin and Cuthbert. They argue that Cuthbert takes unfair advantage of Colin’s long-established reputation within the UK and undermines the important role Colin plays in M&S’s partnership with Macmillan Cancer Charity.

Accordingly, M&S are likely to seek the passing off tort remedy, which allows a brand owner who feels that a rival is causing consumer confusion through the use of a similar mark to take action and enforce unregistered trademark rights. The three fundamental elements of passing off are reputation, misrepresentation and damage to goodwill. To succeed, M&S would have to demonstrate goodwill and prove that Cuthbert’s appearance amounts to misrepresentation.

The core aim of trademark law is to protect the consumer, so the court will have to determine whether Cuthbert is of a close enough resemblance to Colin to create confusion among customers and then look for evidence that such confusion exists amongst consumers. The court will also have to decide whether assumptions could be made that Cuthbert is connected to M&S.

This is not the first time that Aldi has been involved in intellectual property litigation. In 2014, Moroccanoil argued that the packaging of Aldi’s ‘Miracle Oil’ product was an infringement of their trademark. However, Moroccanoil ultimately lost the case because the court decided that Aldi’s customers would not mistake Aldi’s product for Moroccanoil’s luxury product. The case of Colin v Cuthbert is of a similar nature and may therefore have a similar outcome to the Moroccanoil case. It is well-known that M&S’s products are more expensive than Aldi’s, which could explain why they have only targeted Aldi, and it seems odd for M&S to suggest that their clientele cannot distinguish between Colin and Cuthbert, if only because of the significant cost difference between the two cakes.

If M&S’s claim is successful, Aldi will likely have to remove Cuthbert from sale permanently. While Aldi have indicated that they would prefer to avoid litigation, suggesting to M&S that they use Colin and Cuthbert to raise money for cancer charities rather than for lawyers, their jokes on social media about the situation prove that they are not too concerned, and it seems that public opinion is mainly steered in favor of Cuthbert, with #FreeCuthbert trending on Twitter. This legal battle has provided much lighthearted relief over the past week, but it will certainly be interesting to see how it plays out in court.

You can find more here or here.

Criminal Case

Chauvin convicted of killing George Floyd

Reported by Laurence Tsai

Derek Chauvin was found guilty for murdering George Floyd. In fact, the jury found Chauvin guilty of all three charges on 20 April 2021 after only 10 and a half hours of deliberation. As a reminder, the charges against Chauvin were:

• a) Second-degree murder – killing another with intent but without premeditation (max. 40 years in prison)
• b) Third degree murder – killing another without intent and evincing a “depraved mind” without regard for human life (max. 25 years in prison)
• c) Second-degree manslaughter – defendant acted with gross negligence by creating “an unreasonable risk” of killing someone (max. 10 years in prison)

Concurrent or consecutive sentences
Judges have discretion in deciding whether to give defendants concurrent or consecutive sentences.
The charges refer to types of killings as defined and categorized distinctly from one another under Minnesota law. It is, therefore, possible that Chauvin can receive consecutive sentences of up to 75 years’ imprisonment (the maximum total of the charges).

However, legal experts have argued that consecutive sentencing is unlikely as the charges are all varying levels of the same crime. Instead, concurrent sentencing is most likely, which is where the defendant serves all the sentences at the same time. By this measurement, Chauvin could serve up to 40 years in prison for all three offenses, rather than 75 years. Minnesota guidelines also recommend sentences be served concurrently.

Under Minnesota law, the minimum sentence required for each charge is 12.5 years for second-and third-degree murder and four years for manslaughter. When determining Chauvin’s sentencing, the judge will consider factors, such as the presence of a nine-year old among bystanders; the power dynamic between the officers; and bystanders pleading for Floyd’s life during the incident. These aggravating circumstances may convince the judge to deem a higher than minimum sentence for each charge. In any event, we shall see what the judge will decide for Chauvin’s sentence after eight weeks.

The appeal process
Chauvin is expected to appeal his conviction, which will be a difficult battle for the Defense since US courts refuse nine out of every 10 appeals.

During the eight weeks preceding the judge’s decision, the Defense will meticulously investigate any external factors that may have influenced the jury’s decision. If the Minnesota Court of Appeal finds the Defense’s case valid, they could overturn the conviction. Such a decision would prompt the Prosecution to appeal to the Minnesota Supreme Court. Ultimately, if the Supreme Court overturns the conviction or remands the case for a new trial, the trial process could restart with the selection of a new jury. Legal experts argue that an appeal is highly unlikely.

Four grounds of appeal available to Chauvin

• a) Location of the trial
• b) The killing of Daunte Wright
• c) Congresswoman Maxine Waters’ statement
• d) The City of Minneapolis’ proposed $27 million settlement to the Floyd family

Location
Normally, cases that attract significant attention within the communities in which the crime was committed have their trials moved out of that city. The rationale being that a jury outside the community may be more fair and impartial.
However, Chauvin’s case may have gripped the world’s eyes as demonstrated by mass protests spanning multiple countries. The judge believed the pretrial publicity would continue no matter how long they delayed the trial and so continued the trial in Minnesota.

Daunte Wright (a 20-year old African-American)
The Defense voiced its concerns to the judge that protests over the recent police killing of Daunte Wright, a mere 10 miles from where George Floyd died, may have influenced the jury.
An officer, who claims she mistook her gun for a taser when she unloaded at Daunte Wright triggered a fresh wave of protests and violence.

Maxine Waters
The Defense also sought a mistrial over comments made by Congresswoman Maxine Waters, who travelled to Minnesota to tell the crowd of protestors that if a guilty verdict is not secured, they must “get more confrontational”. The judge dismissed the motion but told the Defense that Waters may have given them a ground of appeal that may result in the whole trial being overturned.

The settlement
Legal experts agree that the most damaging aspect to the Prosecution may have been the press conference announcing the city of Minneapolis would pay $27 million to settle a civil lawsuit from George Floyd’s family.

This settlement occurred during jury selection, when potential jurors could have been exposed to media coverage of the event. Although the Defense raised this issue, the judge did not see this as a reason to restart the trial. Two jurors were already dismissed as they admitted hearing about the settlement, leaving them unable to be impartial.

The judge instructed the jury to not read, watch or listen to the news. However, as they were not officially sequestered (i.e. kept away from others) until they were sent away for deliberation, Waters’ comments and Daunte Wright’s death could have unduly pressured the jury to produce a certain verdict.

The Defense routinely requested the jury be sequestered throughout the whole trial. The Defense will likely argue on appeal that had the judge originally granted the request to sequester the jury, they never would have been exposed to Waters’ comments, if they even were, or the killing of Daunte Wright.

Whatever the outcome, this case is a watershed moment in American history for the accountability of law enforcement. Although, some believe the conviction of one officer is not enough to generate meaningful reform of police accountability. President Joe Biden also addressed the rarity of Chauvin’s conviction. He cited this conviction required an “extraordinary convergence of factors”, including footage capturing the incident, traumatized witnesses, a slow killing in broad daylight and senior offices testifying against another officer’s misconduct.
Although Biden interfered with this legal case, it remains to be seen whether he will enact change with his newly acquired status or merely appease the masses where necessary or beneficial for his appearance.

Find out more here or here.