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What does failure to attend trial actually mean?

Torion Bowles
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In the recently reported case of Akita and another v Governor and Company of the Bank of Ireland [2019] EWHC 1712 (QB) (31 January 2019), the High Court has allowed an appeal against the dismissal of a claim following non-attendance at Court. The appeal related to the application of Civil Procedure Rule 39.3, which permits the Court to strike out a claim if the claimant does not attend the trial of the matter.

Double glazing company fined £150,000 for breach of Privacy Electronic Communications Regulations

Torion Bowles
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Superior Style Home Improvements Ltd (Superior Style) has been fined £150,000 by the Information Commissioner's Office (ICO) for failing to comply with Regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) (PECR).

Your rival's products: be careful what you say!

Torion Bowles
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In the case of Al-Ko Kober Ltd v Sambhi [2019] EWHC 2409 (QB) (13 September 2019) the High Court has granted summary judgment in favour of Al-Ko Kober Ltd and its marketing director against the defendant, who manufactured a competing product (stabilisers for towing caravans), for their claims for defamation, malicious falsehood and breach of the Data Protection Act 1998 (DPA 1998).

Validity of notice of assignment stating unverifiable assignment date challenged

Torion Bowles
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The High Court recently determined the question of whether a notice of assignment of a debt was valid where it stated an unverifiable date of assignment.

 

 

Scope of personal data erasure right not applicable worldwide

Torion Bowles
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Individuals have the “right to be forgotten” under the General Data Protection Regulation (GDPR), which means they have the right for their personal data to be erased upon their request.  A recent case has confirmed that the territorial scope of the right applies solely within the EU and not worldwide.   

Preparing your exit strategy - How to prepare your business or company for sale

Naushad Rahman
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With the current uncertainty surrounding the British economy, it is fair to say that businesses are considering their long term options, with many now looking to sell.  Naushad Rahman, Partner in our Company Commercial team, explains some basic steps you should bear in mind when preparing for such an eventuality and how we can support you, your business and your employees through what can be a traumatic transition.

Keeping on the right side of the law when using third party images

Brian Bannister
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Using other people's corporate and brand images without consent is obviously asking for trouble. But what about using other types of image for commercial purposes? The internet is awash with free-to-view images and there is an understandable temptation to appropriate them in some fashion for one's own use, without ever verifying whether or not those images are still subject to copyright and, if so, seeking an appropriate licence from the copyright holder. Brian Bannister, Company Commercial Solicitor, explains here the best option for you when using images for commercial purposes.

Electronic signatures can be used on legal documentation

Helen Porter
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The Law Commission has announced that electronic signatures can be used instead of a handwritten signature on nearly all legal or contractual documents following a lengthy consultation.  Helen Porter, Partner in our Commercial Litigation and Dispute Resolution team, here explains more about the move, the areas of legal practice where there are still exceptions and what this means for businesses.

Has section 21 been abolished for landlords to use?

Laura Blakemore
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The Government’s proposal to abolish section 21 notices has caused a feeling of uncertainty amongst landlords as to how they will go about regaining possession of their property if a tenant refuses to leave after the fixed term of their tenancy agreement expires. The Government has stated that the purpose of the abolishment is an attempt to remove no fault evictions so as to provide renters with the security of having a tenancy that cannot be ended through no fault of their own. The National Landlord’s Association have specified that “over 96% of landlords would consider the leaving the market without section 21”.

Developments in limbo - nitrates in the Solent halts planning process

Jenny Colvin
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Many developments across the Solent region are currently in limbo following the decision of several local authorities to halt the grant of planning permissions for new houses and tourism related projects. This follows advice from Natural England after record levels of nitrates were found in the Solent. Jenny Colvin, Partner in our Commercial Property team, here explains why nitrates are impacting planning permission, which local authorities are affected and when you may be able to apply for planning permission.

When can restrictive covenants be too restrictive?

Antoinette Merryfield
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Post termination restrictions, or restrictive covenants, are stipulations put into contracts that prevent former employees from engaging in certain activities after leaving a job. This is done for a variety of reasons, for example, to protect businesses and prevent former employees from poaching current staff members or clients. There have been several cases where post termination restrictions have been scrutinised in court, and Tillman v Egon Zehnder is one of those cases.

What can I disclose after signing a non-disclosure agreement (NDA)?

Howard Robson
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Non-disclosure agreements have been featured heavily in the news recently due to their controversial nature, and the legality of them is currently being questioned. Whilst NDAs are predominantly used by employers to protect confidential business information, there are certain things in which you cannot be prevented from disclosing, such as information that is already publicly available. Here, our Employment team discuss what else you may be able to disclose, some potential incoming changes to NDAs and why the use of them can be controversial.

Defendant's failure to assign domain name results is finding of contempt of Court

Torion Bowles
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In the case of Juul Labs Inc v Quick Juul Ltd (formerly Quick Xuul Ltd and Quick Juul Ltd) [2019] EWHC 1281 (Ch) (21 May 2019) the High Court has found an individual to be in contempt of Court having intentionally breached the terms of a court order by failing to sign two documents to transfer a domain name to the claimants in passing off proceedings. The sentence handed down was two months' imprisonment.

Putting back the pieces differently - The case for restructuring your organisation

Naushad Rahman
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During their lifetime all companies, businesses, partnerships and sole traders will have to react to personal, economic or financial change as certain factors become more salient at any given point in time. Organisations that refuse to change with the times face the risk of becoming obsolete, or at the very least, miss opportunities.

"Relational" contract benefits from implied duty of good faith

Torion Bowles
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In the case of Bates v Post Office Ltd (No.3) [2019] EWHC 606 (QB) (15 March 2019),  sub-postmasters' contracts with the Post Office have been held to be "relational contracts" and in turn benefited from an implied obligation of good faith. As a result of the implied obligation neither party could exercise its express contractual rights in a way that reasonable and honest people would consider commercially unacceptable.

How to hire and fire an apprentice

Natalie Rawson
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Many employers have enjoyed the benefits of hiring apprentices, particularly since the Government introduced the Apprenticeship Levy in 2017.  Ensuring your apprentice is employed under the right documentation is essential to protect your business against possible claims in the Employment Tribunal. 

The scope of lawful act duress clarified by Court of Appeal

Torion Bowles
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Where a party enters in to a contract because of duress, the contract is voidable by the party who suffered the duress. Economic duress is one aspect of the duress doctrine with the party seeking to prove economic duress having to show the existence of an illegitimate pressure applied by the defendant without which it would not have entered into the contract. Common examples of the illegitimate pressure involve a crime or tort or breach of contract. On occasion, however, unethical but lawful acts have also been held to constitute economic duress.

Intellectual Property: everything you need to know

Helen Porter
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It was recently World International Property Day (26 April), a day on which the World Intellectual Property Organisation (WIPO) seeks to raise awareness about how various intellectual property (IP) rights impact on our daily lives. This year’s event celebrated the positive role that IP plays in encouraging sports amongst the masses, centring around how developments in technology and IP have seen sporting events grow to a global scale over the years.      

Bank's relationship manager had no authority to write off borrower debts

Torion Bowles
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The High Court has held in the case of Stavrinides and others v Bank of Cyprus Plc [2019] EWHC 1328 (Ch) (24 May 2019) that a bank's local relationship manager (the agent) had no actual or ostensible authority to write off its borrowers' substantial debts. As a consequence, the bank (the principal) was not bound by the letter purporting to do so, which had been initialled by the agent. In turn, the borrower was not entitled to rely on the terms of the letter.

Tenant Fees Act now in force

Helen Porter
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The Tenant Fees Act sets out the Government's approach to banning letting fees paid by tenants in the private rented sector and capping tenancy deposits in England.  The aim of the Act is to reduce the costs that some tenants have to pay, and...

Will Brexit frustrate a commercial property lease?

Molly Siggs
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The High Court has recently announced their decision in a pinnacle case regarding whether Brexit could frustrate a commercial property lease.  Molly Siggs, Commercial Property Solicitor in our Portsmouth office, reviews the outcome of the case. ...

GDPR turns one; the impact, the lessons and the future

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The General Data Protection Regulation (GDPR) was implemented a year ago, requiring businesses to adapt to the most revolutionary change in data protection seen in years. Even though 12 months have now passed, businesses are still working towards compliance with the regulations.  

Employment Law changes in 2019

Howard Robson
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2019 will be a year of change for employers and it is vital that companies are prepared in order to avoid potential tribunal claims against them. Howard Robson, Partner in our Employment department, reviews the key updates we can expect to see in the...

Business Contracts - An Overview

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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,...

Redevelopment Repercussions - how to terminate a business lease due to redevelopment

Helen Porter
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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...

GAGA about AGAs

Jenny Colvin
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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...

Changes in Trademark law

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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.

Advocate General's opinion issued on consumers' obligations to return defective goods for repair or replacement

Torion Bowles
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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 issued on the use of personal data post Brexit

Torion Bowles
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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...

Estate agents secure payment despite the agency agreement lacking any express term as to the timing of when the commission would become payable

Torion Bowles
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In the case of Wells (Respondent) v Devani (Appellant) [2019] 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...

Fine for failing to respond to Information Commissioner's Office enforcement notice

Torion Bowles
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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 issues guidance on changes to company registrations in the event of a No-deal Brexit

Torion Bowles
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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...

New pay slips requirements from April 2019

Gina McCadden
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New pay slip requirements are set to come into force requiring itemised calculations for variable rates of pay and hours worked.  This requirement will also be extended to include workers, not just employees.  Gina McCadden, Employment Solicitor,...

GDPR - Much Ado About Nothing?

Natalie Rawson
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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)...

Morrisons supermarket liable for rogue employee's disclosure of co-workers' personal data online

Torion Bowles
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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 need to be specific when making an application for non-party disclosure

Torion Bowles
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In the case of WH Holding Ltd and others v E20 Stadium LLP [2018] EWHC 2971 (Ch) (5 November 2018) the High Court had cause to consider the application of Civil Procedure Rule 31.17 and the principles relevant when the Court decided whether to order a non party to litigation to give disclosure.

GDPR - A Double Edged Sword

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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...

What is the Executive Pay Ratio Report?

Howard Robson
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The requirement for companies with over 250 employees to annually produce a Gender Pay Gap Report came into force this year, with much publicity around its implementation and subsequent results.  The same attention has not been given yet however to the...

Commercial Property Standard Enquiries - the truth, the whole truth and nothing but the truth

Jenny Colvin
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If you have bought, sold or rented commercial property, then you may have heard your legal adviser refer to Commercial Property Standard Enquiries, or more commonly known CPSE.   While the name may refer to them as ‘standard’, if you...

Counter claim for loss of bargain dismissed on grounds of not terminating the Contract on the correct grounds

Torion Bowles
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The case of Phones 4U Ltd (in Administration) v EE Ltd  [2018] 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.

Company Voluntary Agreements in commercial property

Helen Porter
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In recent months, there has been a growing trend in the way commercial tenants are using a particular type of insolvency prevention procedure, known as a Company Voluntary Agreement, to reduce the amount they are paying to their landlords. Here Helen Porter,...

Implied terms in commercial property leases

Justin Sturdy
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Landlords and tenants alike are being warned of the importance of clear drafting in relation to their commercial property leases following the recent ruling in Hipwell v Szurek .  In this case, Ms Szurek rented premises from Mr Hipwell to be a...

Commercial agents agents entitled to indemnity or compensation even where termination occurs during a contractual trial period

Torion Bowles
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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.

Setting up a rival business whilst misusing another party's data constitutes breach of express good faith clause

Torion Bowles
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In the case of Health & Care Management Ltd v The Physiotherapy Network Ltd [2018] 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.

GDPR is here - are you compliant yet?

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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.

Mental Health Awareness Week; what employers need to know

Howard Robson
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Mental Health Awareness Week begins today, Monday 14th May, and serves as an opportunity for employers to revisit current practices and confirm if their policy and culture match up to best practice.  The taboo of talking about mental health has started to shift, following several high-profile campaigns, but many employers are keeping quiet and avoiding conversations with staff, even though they have legal responsibilities and it’s been shown to improve the bottom line.

Employee theft; when to investigate

Emma Kemp
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According to a poll commissioned by office-furniture supplier Kit Out My Office, more than two-thirds of UK office workers have admitted to stealing from their employers and colleagues at some time during their careers. With the cost of stolen items averaging at £12.50 and an estimated 15 million workers having confessed to employee theft, the cost to UK employers adds up to a staggering £190 million each year.  For employers, dealing with employee theft can be a difficult process; Employment Lawyer, Emma Kemp, explains what steps you should take if you suspect one of your workers is stealing from your business.

The customer is always right..?

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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.

Employer responsibilities for volunteer workers

Sarah Whitemore
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There are some organisations that depend on volunteer workers to survive, such as charities and fundraising bodies.   Employers need to be aware that recruiting volunteer workers comes with certain regulations that must be met.  Sarah Whitemore, Employment Partner, here explains the legal obligations for employers to stay on the right side of the law, and how they can support charitable organisations in doing so.