Legal News

Glaser Kc and another v Atay [2024] EWCA Civ 1111 What are the practical implications of this case? The decision offers clear guidance on which provisions fall within CRA 2015, Pt 2 and the way the courts assess whether a consumer term is unfair. It highlights the severe consequence of an unfair term being unenforceable and the possibility that, under an entire obligation arrangement, no fee is recoverable even if some work has been undertaken. It is a prompt for all legal professionals to take care and exercise caution when preparing their own agreements and those for clients where the end-user is a consumer; additionally, advisers should remain alert to potential unfairness points when acting for consumers. The ruling must be read in the context of its particular facts. The court underlined that the global fee here was distinct from the...

What does the government guidance tells us about what reasonable procedures businesses are expected to take to avoid committing the new failure to prevent fraud offence? Government guidance explains the steps expected of businesses to avoid liability for the new failure to prevent fraud offence. Relevant organisations can rely on a defence to FTPF where they have reasonable procedures to prevent fraud (in this context, fraud intended to benefit the organisation), or if they can show it was not reasonable to expect any prevention measures at all. The Guidance to organisations on the offence of failure to prevent fraud (the Guidance) outlines, in broad terms, the procedures companies may adopt to deter associated persons from committing fraud offences. It states that a company’s FTPF framework should be shaped by six principles: top level commitment risk assessment ...

What can we expect from the ASA in the ESG space? In April 2024, the ASA released its 2023 Annual Report, outlining a five‑year plan built on AI‑assisted collective regulation of adverts, shifting the system from complaints‑led cases to proactive monitoring and enforcement. This represents a notable pivot, positioning the ASA as a more visible and agile regulator within ESG. The report confirms that environmental claims continue to be a leading priority for the authority. James Best, Chair of the Committee of Advertising Practice, remarks that arguably the most significant long‑term endeavour of the ASA and CAP has centred on environmental claims. This includes clarifying the meaning of ‘green claims’ and setting expectations for how climate change and mitigating technologies should be presented in adverts. The ASA’s stepped‑up activity demonstrates this focus: in 2023 it issued new guidance on...

Monetise Media Ltd v Information Commissioner [2024] UKFTT 959 ( GRC) What are the practical implications of this case? This ruling offers clear guidance for advisers on PECR risk management and the Commissioner’s likely stance when a breach is alleged. Although the DPA 1998 applied at the material time, the insights below remain a helpful reference for penalty decisions under the Data Protection Act 2018: The FTT confirms that a company can commit a serious PECR infringement through third parties and affiliate marketing, even without direct control over customer databases or the marketing content. Familiarity with the relevant, in-force guidance at the point of any alleged PECR breach is crucial, as both the Commissioner and the FTT will afford it considerable weight during enforcement or on appeal. The decision highlights that the Commissioner will evaluate a business’s conduct during the...

The European Commission stated that Facebook’s owner exploited its power in social media to push Marketplace adverts on users, unlawfully linking the two products in breach of EU competition rules. The Commission said Facebook’s parent company had abused its dominance by doing so. The regulator further alleged the tech giant set unfair terms for other classified advertising firms wishing to market their services on Facebook, granting the company access to data from those rivals’ adverts to strengthen its own Marketplace proposition. Margrethe Vestager, Executive Vice- President of the Commission, said the practice breaches EU antitrust law and that Meta must now cease this behaviour. According to the Commission, Meta coupled its online classified adverts service, Facebook Marketplace, with its personal social network, Facebook, while imposing inequitable trading conditions on competing online classified ads providers......

In this issue: Advertising, marketing and sponsorship Consumer protection Contracts E-commerce Intellectual property International Sale and supply of goods Supplier management Daily and weekly news alerts New and updated content Dates for your diary Trackers Advertising, marketing and sponsorship ASA rulings—13 November 2024 The Advertising Standards Authority examined two paid Google adverts for Cult Wines, a wine investment firm, seen in June 2024. It queried whether the adverts were misleading because they did not set out investment risks and failed to state that previous performance may not predict future outcomes. The complaints were upheld. See: LNB News 13/11/2024 75. Consumer protection CMA launches project on dynamic pricing across economic sectors On 13 November 2024, the Competition and Markets Authority opened a project to scrutinise the use of dynamic pricing across a range of sectors....

Fimbank plc ( Appellant) v KCH Shipping Co Ltd ( Respondent) [2024] UKSC 38 Background This appeal concerns the construction and application of the Hague Rules, a 1924 international convention unifying rules of law on bills of lading, together with the Hague‑ Visby Rules, being the Hague Rules as revised by the 1968 Brussels Protocol. These conventions govern most contracts for the international carriage of goods by sea [1]. Under both regimes, Article III, rule 6 provides that a carrier is released from all liability unless proceedings are commenced within one year from the date the goods were delivered, or the date when they ought to have been delivered (para [2]). Put shortly: in any event the carrier and the ship are discharged from all liability whatsoever in respect of loss or damage to the goods unless suit is begun within one year after...

Topalsson GMBH v Rolls- Royce Motor Cars Ltd [2024] EWCA Civ 1330 What are the practical implications of this case? This decision underscores the need for crisp, accurate drafting to prevent disputes arising from interpretative ambiguity. Lord Justice Coulson stressed giving primacy to the ‘words actually used’ in the contract to identify the parties’ genuine intentions when addressing questions of construction. Clear, unequivocal wording is vital in core clauses—particularly liability and contractual remedies—to avoid unforeseen consequences, financial or otherwise. The judgment also highlights the value of rigorous negotiation around limitations of liability and associated terms, so as to avert future difficulties. Parties should adopt a forward‑looking stance, setting out with precision how the rights and remedies in the agreement will operate in real‑world scenarios if triggered. More generally, the parties’ conduct can shape the court’s discretionary approach when resolving disputes and determining...

Sky Kick UK Ltd and another ( Appellants) v Sky Ltd and others ( Respondents) [2024] UKSC 36 Background In this litigation, the respondents ( Sky) alleged that the appellants ( Sky Kick) had infringed five of their registered trade marks (collectively the ‘ SKY marks’) by using the sign Sky Kick, or slight variants of it, for their email and cloud storage products and services. Sky relied upon four EU trade marks and one UK trade mark as the foundation of the claim. The infringement allegations concerning the EU marks extended across the entire EU, while those relating to the UK mark were, by necessity, restricted to the UK. Sky Kick denied infringement and contested the validity of the SKY marks. Through four judgments, and following a reference to the Court of Justice of the European Union, the High Court determined that Sky had...

Monoprosopi EPE v Maersk A/ S [2024] EWHC 2494 ( Comm) What are the practical implications of this case? This ruling delivers key guidance on: (a) the scope of the inspection a carrier must conduct under Article III.3 of the Hague Rules before stating on a bill of lading that the goods are in apparent good order and condition; and (b) the breadth of carriers’ obligations to avoid unintentionally enabling fraud through bills of lading. Article III.3 requires only an outward check of the container. Unless put on notice of a specific issue (for instance, the sound of glass breaking or the odour of spoiled fish), the carrier is not obliged to examine the contents or confirm the cargo’s weight. As a matter of contract or tort, where a carrier knew, or should have known, of a substantial discrepancy in the cargo’s weight, it is...

In this issue: Advertising, marketing and sponsorship Consumer protection Contracts Data protection Sale and supply of goods Supplier management Lex Talk®Commercial: a Lexis®Nexis community Daily and weekly news alerts New and updated content Dates for your diary Trackers ASA rulings—6 November 2024 The Advertising Standards Authority ( ASA) received two complaints about Currency Wave and Eurostar. Complainants said Currency Wave’s ad wrongly implied Financial Conduct Authority regulation and used inaccurate price comparisons. For Eurostar, concerns were that Instagram and Facebook ads overstated the availability of £39 fares and omitted key information. The ASA upheld both. See: LNB News 06/11/2024 51. ASA publishes its Vaping Project Review on vaping ads targeted at under-18s The ASA has issued its Vaping Project Review, detailing outcomes from investigations, tech-assisted monitoring, enforcement, stakeholder engagement and advisory work on ads aimed at under-18s since June 2023. It found influencers, companies, agencies and vaping brands posting paid and organic content, plus brand...

SATA Internacional- Azores Airline SA v Hi Fly Ltd [2024] EWHC 2762 ( Comm) What are the practical implications of this case? This decision examines the requirement for rectification (here, of a novation agreement) and highlights the distinct approach to admissible material in construction cases as compared with rectification claims. It shows the court first construing the written terms by applying an objective test, and then, by reference to a broader evidential record and a subjective test, deciding whether the contract recorded the parties’ common assumption at the time of contracting, such that rectification might be ordered. The judge also emphasised the difficulties of litigating events long after they occurred, noting that, alongside the oft-cited observations of Leggatt J in Gestmin SGPS SA v Credit Suisse ( UK) Ltd, contemporaneous documents are crucial to the rigorous assessment of oral testimony. Yet it is also...

Prepared by Pépin Aslett, barrister and Head of the Business and Property Team, St John’s Buildings, together with Lucas Gregory, pupil barrister, St John’s Buildings. URE Energy Ltd v Notting Hill Genesis [2024] EWHC 2537 ( Comm) What are the practical implications of this case? This decision highlights several practical points for practitioners to bear in mind when asked to draft contractual terms or to advise in matters raising the defence of waiver by election. In deciding whether a rights holder suspected that a right might be engaged—and therefore should not have turned a blind eye—the court considered the following: any correspondence or discussions concerning the contract and any potential breaches whether the clause in question would have been prominent or of real significance to a party when negotiating and agreeing the contract whether the term had been expressly brought to that...

Consequences regarding design requirements Wherever packaging is required, it should be conceived, manufactured and commercialised so that it enables re-use or high-quality recycling, while minimising environmental impact across its entire life-cycle and the life cycle of the goods it was created to contain. This approach gives manufacturers room to innovate in packaging design and to set their products apart through the application of such innovation. In turn, these novel packaging designs ought to be properly safeguarded through appropriate intellectual property protection, which may include: Patents covering an inventive packaging format or an inventive packaging process; Trade marks protecting the distinctive get-up of the product; Registered designs safeguarding the visual appearance of new product packaging. By aligning design, production and commercialisation with re-use and high-quality recycling, businesses can both lessen environmental impacts over the full life-cycle and leverage innovative packaging as a...

In this issue: Autumn Budget 2024 Advertising, marketing and sponsorship Confidential information Consumer protection Data protection International Public procurement Sale and supply of goods Supplier management Daily and weekly news alerts New and updated content Dates for your diary Trackers Latest Q& A Autumn Budget 2024 Autumn Budget 2024—key Commercial announcements Autumn Budget 2024—key Commercial announcements On 30 October 2024, during the Autumn Budget, the Chancellor of the Exchequer, Rt Hon Rachel Reeves MP, set out the newly elected Labour government’s plans to repair the economy and deliver change. She unveiled reforms to the fiscal framework designed to enhance certainty, openness and accountability, with the aim of supporting economic and fiscal stability. Alan Murdie, barrister at Council Tax Legal Services, comments on the Autumn Budget 2024. See: LNB News...

The watchdog’s decision According to the regulator, the major social network’s handling of information breached multiple provisions and infringed several articles of the EU’s General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR). The ruling stems from a 2018 complaint lodged by the French non-profit organisation La Quadrature Du Net, and was initially submitted to the French Data Protection Authority ( CNIL). At that time, the group brought several complaints concerning Big Tech companies during the first week of the EU GDPR’s operation. Lawfulness of processing is central to data protection law, and processing personal data without an appropriate legal basis is a clear and serious breach of data subjects’ fundamental right to data protection, said the DPC’s deputy commissioner, Graham Doyle......

Oracle Security Services Ltd v Barts Health NHS Trust and others [2024] EWHC 1201 ( TCC) What are the practical implications of this case? Mr Andrew Mitchell KC’s judgment offers significant clarification on how limitation periods operate in procurement challenges under PCR 2015, SI 2015/102, reg 92, confirming that the 30‑day window to issue proceedings starts on the very day the claimant acquires actual or constructive knowledge of the material facts, rather than the next day. For legal advisers, the ruling also highlights the imperative to act without delay on client instructions and pre‑action communications. As illustrated here, knowledge possessed by a claimant’s solicitor is attributed to the claimant, so solicitors must note any pertinent information received during pre‑action exchanges and calculate deadlines accordingly. The decision likewise stresses that contracting authorities and economic operators should clearly record when such information is provided, to...

ESG context and glossary Regulators, investors, employees, other stakeholders, and society more broadly are propelling companies to engage with their ESG ( Environmental, Social, Governance) agenda. In recent years there has been a clear cultural shift towards a worldwide community with a heightened social and environmental conscience. Domestic and international laws, rules, policies, politics, and broad commercial pressures together place both explicit and implicit expectations on companies to get their ESG strategy right. Responsible organisations will recognise the notion of ‘greenwashing’: the practice of making false or overstated assertions about a company’s environmental credentials and the sustainability of its products, services and environmental impact, so as to seem more environmentally aware and less harmful to the planet. Yet corporate and consumer ethics now reach beyond the ‘ E’. They also reflect a call for openness, integrity, and for modern commerce to be enlisted as a driver of...

Yangtze Navigation ( Asia) Co Ltd & another v TPT Shipping Ltd & others ( The Xing Zhi Hai) [2024] EWHC 2371 ( Comm) This decision reaffirms the settled position that courts are reluctant to let agency concepts supplant the doctrine of separate corporate personality, a defining feature of standard shipping company structures. It also addresses the practical challenge that can arise when a counterparty deals with an intermediary usually known to act for principals, but the capacity is unclear on this occasion. Background the dispute related to three consignments of logs carried from New Zealand to India the logs were produced by the third to fifth defendants (the Exporters), who executed Log Marketing and Sales Agency Agreements ( LMSAAs) with TPT Forests Ltd ( Forests) under those LMSAAs, Forests acted as the Exporters’ agent to market and sell their logs abroad....

Reynders has said that online platforms face oversight under the EU’s digital framework and the customs union reforms, to make sure goods coming into the bloc comply with its safety requirements. He added that the EU Digital Services Act, Regulation ( EU) 2023/988 (the EU General Product Safety Regulations), and the customs union overhaul are vital to shield the EU from unfair competition by online marketplaces. ‘ Safeguarding consumers and ensuring marketplace compliance will continue as a core enforcement focus,’ Reynders stated on 21 October 2024 during a formal debate in the European Parliament’s plenary session. ‘ We take this duty seriously and will not hesitate to act decisively.’ The outgoing Commissioner explicitly named Chinese platforms Temu, Shein and Alibaba, as well as US-based Amazon, as among the companies that will need to......