As this is my last edition as editor of the Commercial Brief I thought it would be appropriate to become slightly philosophical on a legal subject that is very close to my heart—commercial contracts. I have, over the years, seen and indeed drafted,...
Landlords will be familiar with the protection afforded to business tenants when it comes to lease renewal under the Landlord and Tenant Act 1954. At the end of WWII, commercial property was at a premium. Business tenants found that when they...
An option available to a tenant under a commercial lease is the ability to assign (or transfer) the lease to a third party. This will usually require the landlord’s consent. One of the conditions of a landlord giving their consent will inevitably be...
The Trade Marks Regulation 2018 (SI 2018/825), implementing the Trade Marks Directive (EU) 2015/2436 and amending the Trade Marks Act and the Trade Mark Rules 2008 came into force on 14 January 2019. We list below some of the most important changes: Marks...
In the case of Christian Fülla v Toolport GmbH (Case C-52/18) EU:C:2019:22 (15 January 2019) Advocate General Wahl has issued an opinion concerning the return of defective goods for repair, under the Sales and Guarantees Directive (1999/44/EC )...
Guidance has been issued by the Department for Business, Energy and Industrial Strategy (BEIS) concerning the use of personal data after Brexit. The BEIS guidance explains how Brexit will affect UK businesses both in the event of a deal and if there is no...
In the case of Wells (Respondent) v Devani (Appellant)  UKSC 4 (13 February 2019) ), the Supreme Court unanimously found that an estate agency agreement with the seller was complete and enforceable despite not expressly stating the trigger events when...
Magnacrest Ltd, a housing developer, pleaded guilty at the Westminster Magistrates' Court to a charge brought under section 47(1) of the Data Protection Act 1998 for failing to comply with an enforcement notice issued by the Information...
Companies House has published guidance concerning changes to the registration of companies in the event of the UK leaving the EU without a deal. The guidance includes information concerning: European entities formed under EU law (i.e. Societas Europaea...
Our Commercial division have expanded their expertise in their support for businesses with the introduction of two new Solicitors; Molly Siggs and Naushad Rahman.
GDPR has been effective for almost six months now and the Information Commissioner’s Office (“ICO”) has prosecuted or taken other enforcement action (and imposed monetary penalties, enforcement notices, or demanded undertakings)...
Wm Morrison Supermarkets Plc was unsuccessful in its appeal against the High Court ruling that it was vicariously liable for an employee's deliberate disclosure online of co-workers' personal data.
The case of Phones 4U Ltd (in Administration) v EE Ltd  EWHC 49 provides a useful reminder that the content of a notice served to terminate a contract will be critical when considering whether a party can sue for damages arising from a party’s repudiatory breach of a contract.
It is nearly five months since the General Data Protection Regulation (“GDPR”) came into force but whether any business could achieve full compliance is still uncertain. Is it possible that efforts to comply are being drowned in a sea of Data...
The Chancellor announced two significant changes in his autumn budget to the qualifying conditions required to claim Entrepreneurs’ Relief (ER). ER is an important tax relief for many of our clients because it may be applied to reduce the rate of...
In the European case of Conseils et mise en relations (CMR) SARL v Demeures terre et tradition SARL (Case C-645/16) EU:C:2018:262 (19 April 2018) the European Court of Justice (“ECJ”) was required to consider whether a commercial agent was entitled to indemnity or compensation when termination occurred during a contractual trial period.
In the case of Health & Care Management Ltd v The Physiotherapy Network Ltd  EWHC 869 (QB) (19 April 2018), the High Court has underlined the benefit of a well drafted “good faith” clause and the ability for such a clause to make up for any drafting deficiencies within the body of the contract.
This article is directed particularly to those “fortunate” individuals responsible for GDPR compliance in their organisations. It is anticipated that in answer to the question are you ready for GDPR, many would answer no—in common with most UK businesses.
As we edge closer to GDPR-Day further guidance is being issued by the Article 29 Working Party (“WP29”), with a recent one on transparency (“the Guidance”). Their original guidance on this was adopted on 29 November 2017; this document was open to consultation until 23 January 2018.
As we edge nearer and nearer to GDPR-Day (25 May 2018) more businesses are questioning their data protection policies and are attempting to overhaul their data protection practices.
The Consumer Rights Act 2015 (“the Act”) which came into force on 1 October 2015 has been billed as the biggest overhaul of consumer rights in a generation.
The question of what constitutes a B2B communication is now applicable when considering the General Data Protection Regulation (“GDPR”), specifically in relation to marketing.
It is now only three months until the General Data Protection Regulation goes live and local law firm, Warner Goodman are seeing an increasing number of requests for assistance in making businesses compliant.
As from 13th January 2018 businesses are no longer able to charge a consumer for payments made by credit card or debit card.
Against a background of government reforms in Courts and Tribunals, the Ministry of Justice aims to ensure that the process of debt recovery strikes a balance, between the legitimate right of an individual or business to pursue a money claim, and the right of a debtor, to know of any claim against them and have the opportunity to defend that claim.
Articles 13 and 14 of the General Data Protection Regulation set out the requirement to send data subjects information about their personal data and how is it being processed.
Article 30 of the General Data Protection Regulation (“GDPR”) states that each controller and processor of a data subject’s personal data shall maintain a record of processing activities that are its responsibility. It goes on to set out what should be contained in each of the controller’s and processor’s records.
On 7th August the Digital Minister of the UK Government announced the imminent publication of a “Data Protection Bill” and released a “Statement of Intent” in which the Department for Digital, Culture, Media and Sport sets out its plans for the future regulation of personal data usage by business and its enforcement.
On 25th May 2018 the EU’s General Data Protection Regulation (GDPR) comes into effect across all the EU and EFTA member states, replacing the Data Protection Act in the UK (DPA), the Federal Data Protection Act in Germany (BDSG) and similar data privacy laws in all those states. It will be enforced by local data protection agencies and courts and provides for fines for defaulters of up to 4% of global turnover or, if higher, EUR 20m. It makes substantial changes to data protection rules in the UK. The UK Government has announced that it will continue in effect post Brexit.
Following the implementation of the Money Laundering Regulations on 26 June 2017, businesses need to be aware of important new deadlines under the People with Significant Control (PSC) Regime.
Outside specialist lawyer/IP practitioner circles the risks or benefits of legal action against unjustified threats are little known. This cause of action is only applicable to intellectual property infringements and even specialists have had difficulty analysing what is, or is not, a threat.
Civil restraint orders (CROs) prevent individuals from bringing claims or applications which are without merit. CROs normally require their subject to obtain court permission before further claims or applications relating to a particular cause of action can be issued (e.g. a claim for patent infringement). They should not be confused with “Restraining Orders” being court orders that help protect people from violence; stalking, serious harassment or threats of violence.
Geoffrey Sturgess, Consultant Solicitor within the Commercial department of Warner Goodman, has been named as one of 20 Legal Eagles according to Global Franchise Magazine.
Small businesses are due to benefit from new regulations introduced this month that require larger companies to publish information about how long they take to pay their suppliers. Brian Kirby, Head of Debt Recovery, reviews the regulations here and further explains how small businesses can help reclaim debts if there are payments outstanding.
The sending of electronic marketing (emails, SMS etc) to consumers is governed by the Data Protection Act (DPA), The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) and the Code of Advertising Practice (CAP).
GDPR was adopted by the European Parliament on 25th May 2016 and comes into effect on 25th May 2018. Geoffrey Sturgess explains what this means for businesses and what action you need to be taking.
Crowdfunding through online portals (crowdfunding platforms) is an increasingly popular method of raising money for new businesses and organisations to finance their activities.
The Competition and Markets Authority (previously the Office of Fair Trading) has carried out a survey and discovered that over half the businesses questioned did not understand the meaning or significance of unfair contract terms.
The use of personal data in the United Kingdom (UK) is currently governed by the Data Protection Act 1998 (DPA) which was implemented in order to comply with the European Union’s (EU) Data Protection Directive (DPD). The General Data Protection Regulation (GDPR) replaces this current legislation and is in force with effect from the 25th May 2018, in a bid to harmonise practices across all member states.
Where parties enter into a contract and there remain provisions to be agreed in the future then the contract may lack certainty and be considered a mere agreement to agree. It has long been held that if such a contract lacks sufficient certainty then it may be unenforceable.
From 1st July 2016 the Company Annual Return that needs to be made to Companies House has been replaced by the Confirmation Statement. The change was made by the Small Business, Enterprise and Employment Act 2015. The Confirmation Statement will be due on the date that the Annual Return would have been due.
It is very likely that a significant number of UK unlisted companies and their directors, have since 6th April 2006 unwittingly been committing a number of new criminal offences for which the humans amongst them could be imprisoned.
On 23rd June the UK voted to leave the European Union, a decision that will have substantial effect on a number of legal issues which are very relevant to UK businesses even if they do not trade with other EU states. At present it is not easy to predict those effects as they all depend, in large part, on decisions which are yet to be made by UK and EU politicians and bureaucrats as part of the two year disconnection process.
Since 52% of eligible UK voters chose to leave the EU, there has been debate over when Article 50 of the Lisbon Treaty should be triggered and prominent business figures have weighed in with their outlook on life and business outside of the Eurozone.
As reported in our Autumn 2015 Commercial Brief, the (“the Act”) received Royal Assent on 26 March 2015.
One of the aims of the Act is to enhance the transparency of UK private companies and from 6th April 2016 most companies have to start maintaining a register of people with significant control (“PSC register”), although the obligation to file this information at Companies House will not come into effect until three months later.
The General Data Protection Regulation, GDPR, will replace the Data Protection Act in 2018 following its adoption by the European Parliament on 14th April. It is much tougher on businesses.
In late 2015 the Supreme Court gave its judgment on the joint cases of Cavendish Square Holding BV v Talal El Makdessi (“El Makdessi”) and ParkingEye Ltd v Beavis (“ParkingEye”)  UKSC 67. In these cases the Court considered the long standing rules and principles in relation to penalty clauses contained in commercial contracts.
The Taking Control of Goods Regulations, part of the Tribunals, Courts and Enforcement Act 2007, came into effect on 6th April 2014. The aim of these regulations was to bring conformity and clarity to the various forms of debt enforcement.
On 26 April 1970 the World Intellectual Property Organisation (“WIPO”) came into force. In 2000 the member states of WIPO designated 26 April as “World Intellectual Property Day” (“World IP Day”). The aim behind this was to increase general understanding of intellectual property (“IP”).
Reports on the so-called Panama Papers have focused on the tax affairs of wealthy individuals and the businesses that help them avoid tax, but the hacking of client files at law firm Mossack Fonseca should sound a warning for every business.
From 15 February 2016 the EU’s new online dispute resolution (ODR) platform became operational.
Under EU Regulation 524/2013 (“the Regulation”) consumers and traders within the EU can use the ODR platform to refer contractual disputes between a consumer and a trader in relation to goods and/or services purchased online to an agreed alternative dispute resolution (“ADR”) provider.
There is currently much debate and uncertainty over the status of the UK’s membership in the European Union. If the UK does remain in the EU following the referendum on 23rd June 2016, then along with the much talked about changes to its membership, the UK will also face significant changes to data protection law as a result of the new General Data Protection Regulation (“GDPR”).
The Consumer Protection from Unfair Trading Regulations (“the Regulations”) gave effect to the European Unfair Commercial Practices Directive. The Regulations prohibit misleading commercial practices that may cause the average consumer to take a different commercial decision to that which they intended.
After substantial discussions in the corridors of Brussels a nearly final form of the General Data Processing Regulation “GDPR” has been published. Announced by Brussels as creating a “single market for data processing across the EU” it will in fact create substantial new compliance obligations for most businesses in the UK when, as anticipated, it comes into effect in 2017.
After building up a successful business and reaping the rewards, it may be time to think about how else your brand can work for you. Apart from the typical route of employing more staff in new locations, and taking on new premises, an alternative and often overlooked option is franchising.
The Small Business, Enterprise and Employment Act 2015 (“the Act”) received Royal Assent on 26 March 2015. The aim of the Act is to enhance the transparency of UK companies. The Act introduces new filing requirements for companies, and will impact upon most businesses of all sizes.
If a client of yours is refusing to pay an outstanding bill, the financial implications to your business are obvious, but there’s also the cost of spending time attempting to recover the debt, as well as disruption to any future engagement or projects....
Alice Samuel, Legal Secretary in the Company Commercial team reviews The Modern Slavery Act which was passed in March 2015 and is intended to tackle modern slavery by consolidating and defining various offences that relate to human trafficking and slavery. It provides for two main offences that relate to holding another person in slavery, servitude and forced or compulsory labour and arranging or facilitating the travel of another person with the intention of exploiting them.
The release of the hacked data from an extramarital dating site will have given its customers more than the usual worry that accompanies news of cyber-crime. Geoffrey Sturgess, Company Commercial Consultant Solicitor, explains the different ways in which cyber-crime can occur and advises businesses to carefully review their information risk management regime, assessing their processes with the same rigour as legal, regulatory, financial or operational risk.
Torion Bowles at Warner Goodman Commercial reviews two cases involving global superstars in the music industry, which have recently highlighted the importance of protecting intellectual property rights.
If you are trading and you have a brand either for you or for a particular type of good or service that you supply you should consider getting it registered as a trademark. The fact that it is your company name is NOT sufficient to prevent others using it or a similar mark as a trading name or a brand.
Torion Bowles of our Commercial Litigation and Dispute Resolution Team takes a look at the recent Court of Appeal decision where it was found that Mattel’s Community Trademark for SCRABBLE was not infringed or passed off by Zynga Inc’s online words game Scramble With Friends (“SWF”).
The Small Business, Enterprise and Employment Act 2015 (SBEE Act) will abolish corporate directors from 1st October 2015. Steven Grant, Company Commercial Partner, explains here that companies will no longer be allowed to be a director of another company and advises that those using corporate directors would be well placed to start considering how the SBEE Act will affect them, and whether they will need to restructure their boards.
Three individuals set out to bring a claim in England against US based company, Google Inc., for misuse of their private information. Torion Bowles, Litigation Solicitor, reviews the case (Google Inc. v. Judith Vidal-Hall and others  EWCA Civ 311), which has not reached trial yet, but has resulted in a number of ground-breaking changes to the law already being decided upon.
Two companies who went to court in an argument over whose terms and conditions applied to a contract between them, have both lost out. Steven Grant, Head of the Commercial Team at Warner Goodman Commercial, explains more about the case here, and why the High Court decided that neither company had a leg to stand on in their dispute over the supply of rubber gaskets.
Most businesses need standard terms to operate, and it’s important these are kept up-to-date. Steven Grant, Partner in the Company Commercial team, here answers 10 of the most common questions asked by clients.
A new Pre Action Protocol for Debt Claims (The Debt Protocol) is likely to be introduced by Spring 2015, following on from Lord Justice Jackson’s recommendation that a new specific pre action protocol should be introduced. Brian Kirby, Head of Debt Recovery, explains what these changes mean if your business is claiming payment of a debt from an individual.
In the week that Taylor Swift reportedly obtained a trademark in the USA to protect the use of her lyrics from her “Shake It Off” and “1989” albums, the Court of Appeal in England & Wales has upheld a decision where the use of an image of the pop star Rihanna on a T-shirt was found to be passing off and had damaged the goodwill and reputation of her business.
When a company decides to expand internationally, not only must it take with it resources such as materials, capital and personnel, but also the trade secrets which it hopes will give it a competitive advantage in its new market. Protecting those trade secrets from disclosure to and use by competitors is an important challenge made more complicated by the lack of uniform laws in the international realm.
Warner Goodman Commercial recently presented a seminar under the banner “Doing Business Abroad” at the Chilworth Manor Hotel. With over 40 guests in attendance from a variety of business sectors, the evening was a great success. The audience, mainly comprised of SME business people, came to learn how to trade, expand and operate overseas and how to avoid pitfalls.
Doing business overseas (unless on the Isle of Wight) will always involve issues of international law – even in Northern Ireland. It doesn’t need to be overseas either, consider Scotland which has Scottish law, not English. Doing business always involves contracts, even if they are unwritten and so here Geoffrey Sturgess, Consultant Solicitor, highlights the potential pitfalls you must be aware of when doing business overseas.
The British Franchise Association has again been concerning itself with the question of self-regulation v Regulation. Regulation with a capital “R” in this context means regulation by the State—laws governing the way in which the relationship between franchisor and franchisee has to work; laws that might, for example prohibit “no reliance” (on anything said by the franchisor to the franchisee prior to the contract) clauses; or proscribe formal, pre-contract, disclosure by franchisor to franchisee (on which the franchisee can rely); or cooling off periods.
Warner Goodman Commercial is pleased to announce a forthcoming seminar on “Doing Business Abroad”, an evening of presentations in Southampton for SMEs interested in trading, expanding or operating overseas.
Commercial parties to a contract will always be concerned about any exclusion of liability contained in the contracts they enter into. The service or goods provider will be concerned about the liability they may incur in fulfilling their obligations under the contract, whilst the recipient of said services or goods will be concerned as to what extent their right to recover any loss suffered under the contract is restricted. Geoffrey Sturgess, Company Commercial Consultant, here explains the reasons behind exclusion clauses and reviews recent case law.
Torion Bowles, solicitor within the Commercial Litigation and Dispute Resolution Team at Warner Goodman Commercial, examines the impact of the new Consumer Contract Regulations on traders and their businesses.
Unless you use our commercial department for your international commercial legal work, you may be unaware that it is a major part of our commercial practice, with no sign of slowing down. It is for this reason that Jonathan Strassberg, a US, Scottish and UK joint qualified lawyer, has joined the team to help continue this expansion of our international caseload.
Barry Spencer, a private investigator and director of ICU Investigations Ltd has been found guilty of conspiring to unlawfully obtain personal data under section 55 of the Data Protection Act 1998 (DPA). Geoffrey Sturgess, Company Commercial Consultant, here reviews the case and the possible ramifications that lie ahead for those who use private investigators to retrieve personal data.
Commercial landlords will have been following the case of Games Station Ltd, which reached the Court of Appeal recently (February 2014), but it is of interest to all who supply goods and/or services to companies that then go into administration.
The majority of questions that come from shareholders focus around a few key areas; working with other shareholders in the business, your personal rights as a shareholder, and selling your shares.
Ownership does not always mean control. The directors, rather than shareholders, have day to day control of the company’s affairs.
The globalisation of data processing and the increasing value of that information are key factors behind the planned changes to data protection legislation in European countries. In offering greater safeguards for the rights of individuals in how their data is handled by companies, this is set to create new challenges for business.
The Court of Appeal has recently ruled that a contract clause denying one party the right to rescind the contract or seek damages for the other’s pre-contract mis-representation (false information given which induced the innocent party to enter into the contract) was enforceable in the circumstances of the case, explains Geoffrey Sturgess, Commercial Consultant.
The tax status of fixed share members in LLPs has been brought into sharp focus by the Finance Bill 2014 and the expected reclassification is set to affect many, explains Steven Grant, Head of the Commercial Group.
The Court of Appeal has given a timely reminder as to the fair treatment of minority shareholders. Steve Grant, Head of Warner Goodman Commercial’s Department, evaluates a recent case in which a minority shareholder alleged that he had been mistreated by the company’s director and majority shareholder, and the implications of the case outcome for shareholders.
Television company Sky has succeeded in forcing software giant Microsoft to drop its SkyDrive name for “cloud” digital storage services. The case highlights the need for businesses to be cautious when it comes to new brand or service names, warns Geoffrey Sturgess, IP and commercial contracts solicitor at Hampshire based law firm Warner Goodman Commercial.
The surprising decision of the High Court (discussed below) has been overturned by the Court of Appeal, which found in favour of Fairstar and ordered Adkins to hand over the emails. The judges in the Court of Appeal believed that it was “unnecessary” to consider whether the emails were the property of Fairstar, as the High Court had done.
The term “contracting with monsters” is not the subject of a procurement manager’s nightmares but in fact a description of the common experience of entering into a commercial agreement with another entity that is much, much, bigger than you.
Brian Kirby, Head of our Debt Recovery Team, considers whether there is a limitation period for enforcing a money judgment, and reviews recent cases to support the law.
Some owner managers who have kept their business afloat by lending their own money to the business have decided enough is enough and are looking to exit, states Steven Grant of Warner Goodman Commercial. Coinciding with a general acceptance that the economy is unlikely to return to its former levels any time soon, debt burden has caused many SME business owners to rethink their strategy and for some, selling appears to be the most attractive option.
Buying a business can be one of the most important decisions you make in your life, and there are many factors to consider before signing that final contract. Here Steven Grant, Commercial Partner, covers the key questions you need to answer before committing to buying a business.
If you’re looking to set up your own business, it may be worth considering becoming a franchisee. In the current economic climate, this may be a path worth exploring, explains Geoffrey Sturgess, a commercial lawyer at Hampshire based law firm Warner Goodman Commercial.
The European Commission has published an easy to read summary of the rights of consumers when accessing digital and communications services including on-line purchasing says Geoffrey Sturgess of Hampshire based law firm Warner Goodman Commercial.
The post-Christmas and January sales are the busiest time of year for the retail industry, with record numbers of us recently taking to the shops on Boxing Day. However, businesses should think carefully before using promotions involving free offers warns Geoffrey Sturgess, commercial solicitor from Hampshire based law firm Warner Goodman Commercial.
The Court of Appeal has recently ruled against the US brewer, Anheuser-Busch Inc, in its attempt to prevent its Czech rival, Budejovicky Budvar Natodni Podnik, of its right to use the ‘Budweiser’ name in the UK.
A recent decision of the Advertising Standards Authority shows just how far advertisers must go to avoid their advertisements being held to be misleading says Geoffrey Sturgess of Solent law firm Warner Goodman Commercial.
The Court of Appeal has ruled that a series of emails between shipping professionals were a “document” and that their email sign-offs were signatures so that the contract of guarantee created by the emails was enforceable says Geoffrey Sturgess an IT lawyer with Southampton firm Warner Goodman Commercial.
A court has declined to hold Google liable for potentially libellous comments posted on its site, leaving an individual to pursue the posters.
Website owners will need to comply with the new law on cookie consent by 25th May 2012. By that date they will need to be able to demonstrate that they have audited the cookies used by their sites and implemented procedures preventing the “setting” of most cookies on users’ computers unless those users have given educated consent.
Websites, whether they be .uk or .com or under any other country domain are effectively accessible from anywhere in world. As a result if they contain material offensive to any jurisdiction in the world the website proprietor could face legal action anywhere in the world. It is, however, obvious that no one, other than a global business, would have the resource or desire to ensure that its website complies with all legal requirements worldwide.
The use by internet advertisers of competitor names to draw traffic has been declared unlawful at the end of a high profile battle between Marks & Spencer and Interflora.