Commercial news update October 2018: New Brexit Watch news feature, Force majeure clauses and data breach insurance

05 Oct 2018 | 5 min read

With the planned Brexit date fast approaching, we have launched Brexit Watch - a new feature to keep you up-to-date on the impact and options available to us on the lead up to the proposed leave date.

Brought to you directly are updates across corporate & commercial, employment, intellectual property and competition.

We focus on the commercial aspects and look at the practical steps for you to consider.

This month, we cover the following.

Brexit Watch – tune in at 0:14 secs

This month we start with a new section – Brexit Watch. There are now less than 6 months to the planned Brexit date and things are starting to become a little clearer.  Perhaps not the outcome, but the impact and the options open to us.

Corporate & Commercial – tune in at 1:05 secs

Force Majeure - A recent case confirmed an earlier authority that to be able to rely on a force majeure clause the force majeure event must be the sole cause of the failure to perform an obligation.
See News Analysis: Force majeure and reasonable endeavours (Seadrill Ghana v Tullow Ghana)

Excluding liability for misrepresentations - The 2012 Court of Appeal case of Axa v Campbell concerned an exclusion of liability clause for misrepresentation in a business to business contract. This stated that to exclude liability for misrepresentation the exclusion clause must specifically refer to misrepresentations and state that there has not been any reliance on any representation.

The Court in a recent case that concerned the sale of Nottingham Forest FC however allowed a widely worded clause to exclude liability for misrepresentation even though it did not meet the requirements of the Axa decision.
See News Analysis: Don’t lose sight of the forest for the trees—interpreting entire agreement clauses (NF Football Investments Limited v NFFC Group Holdings Limited)

What does a party need to show to prove a misrepresentation? - Following a precedent from an earlier case the Court found that where there has been a fraudulent misrepresentation, the wronged party only needs to show that the misrepresentation was one factor in its decision on whether to commit to the contract and that it might have made a different decision but for the misrepresentation.
See News Analysis: Inducement in fraudulent misrepresentation cases (BV Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises, Inc.)

Electronic signatures - The Law Commission has launched a consultation concerning electronic signatures on contracts. The consultation closes on the 23 November 2018. The Commission’s provisional conclusion is that electronic signatures are valid except for those documents that specifically still require a wet ink signature such as Deeds and Wills.

Data security – tune in from 3:57 secs

Data Breach Insurance - A recent report has revealed that only a third of UK businesses are insured against information security breaches, despite annual losses from cybercrime estimated to be topping £291 billion.

New rules on telephone marketing of claims management services - On the 8th September the Privacy and Electronic Communications Regulations was amended to obligate companies marketing claims management services to only make marketing calls where they have the consent of the consumer.
See LNB News: Ban on unsolicited cold calls for claims management services comes into effect

Employment – tune in from 4:45 secs

Privilege - The Court of Appeal has given a landmark decision on litigation privilege in the case of the SFO -v- Eurasian Natural Resources.
See News Analysis: Privilege in internal investigations restored (SFO v ENRC)

Lawyer’s email not privileged - The Employment Appeal Tribunal (EAT) has held that a lawyer’s email that advised how redundancy could be used as a cloak for dismissal of an employee was not privileged and must therefore be disclosed.
See News Analysis: Advice on how to commit discrimination may be an iniquity and not privileged (X v Y Ltd)

Independent contractor defence - The Court of Appeal in the recent Barclays Bank v Various Claimants case has reaffirmed that the ‘independent contractor defence’ no longer exists - so organisations may be liable for the acts of third-party contractors where the contractor relationship is ‘akin to employment’ and the act complained about is closely connected with that employment.
See News Analysis: Court of Appeal deals a blow to ‘independent contractor defence’ (Various Claimants v Barclays Bank plc)

Gender Pay Gap - The Business, Energy and Industrial Strategy Committee has published a report on gender pay gap reporting. The report contains recommendations to tackle the gender pay gap, including introducing key performance indicators for reducing and eliminating pay gaps.
See LNB News: Gender pay gaps favouring men must be closed, report says

TUPE - HMRC has issued an update stating that where there has been a TUPE transfer of employees, all national minimum wage liabilities, including penalties, will be enforced against the transferee employer.

Right to have a companion at a disciplinary or grievance hearing - In Talon Engineering Ltd v Smith, a dismissal was found to be unfair where the employer refused to postpone the hearing by 10 days to allow the chosen companion to attend.
See News Analysis: When a refusal to postpone a disciplinary hearing may render a dismissal unfair (Talon Engineering v Smith)

Competition – tune in from 7:12 secs

Website - We have previously reported the CMA’s fine to Ping Europe Ltd of £1.45m for breaching competition law by prohibiting two of its retailers from selling golf clubs on their websites. Ping appealed to the Competition Appeal Tribunal (CAT). The CAT disagreed and has upheld the CMA’s decision except for some minor changes to the calculation of the fine.
See LNB News: CAT judgment: CMA’s substantive findings against Ping in relation to online golf equipment upheld, but fine reduced


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