Legal News

Quantum Advisory Ltd v Quantum Actuarial LLP [2024] EWCA Civ 247 What are the practical implications of this case? Brand owners to exercise vigilance when granting powers to third parties over their brands While many lessons arise from this ruling, the standout, practical message for brand owners is to recognise the hazards inherent in delegating parts of, or the day-to-day running of, their enterprise to outside parties. Above all, keep firm control of the brand itself. Owners should scrutinise the terms with distributors, franchisees and other outsourced providers, and make it unmistakably explicit where any trade mark permissions start and end. On the flip side, those contracting with brand owners should treat this as a stark warning about the stringent duties that flow from agency and fiduciary relationships, and the serious fallout for breaching them in an attempt to secure a benefit or capture an asset for one’s own...

In this issue: Advertising, marketing and sponsorship Confidential information International Sale and supply of goods Lex Talk®Commercial: a Lexis®Nexis community Daily and weekly news alerts New and updated content Dates for your diary Trackers Advertising, marketing and sponsorship ASA rulings—3 April 2024 The Advertising Standards Authority ( ASA) logged 282 complaints about television, radio and press adverts for Nationwide Building Society t/a Nationwide seen and heard in October and November 2023. Complainants queried whether the ads’ claims of keeping the banks open were misleading. The ASA upheld the complaints. See: LNB News 03/04/2024 34. Confidential information UK to nullify NDAs that stop people reporting crimes On 28 March 2024, the government said non-disclosure agreements ( NDAs) that prevent victims from reporting potential crimes will become unenforceable, as it announced plans to ‘clarify’ the law governing these...

Justice Secretary, Alex Chalk, has said the move is intended to end the 'murky world of non-disclosure agreements' Under plans to curb misuse of NDAs, those bound by confidentiality clauses would still be free to raise alleged criminality with key professionals and crime-fighting bodies. On 28 March 2024, Alex Chalk set out an ambition to end the ‘murky world’ where such agreements are used to conceal wrongdoing, adding that the reforms will make clear in law that gagging orders cannot lawfully be wielded against victims to block justice or silence them. Lawyers and the police Medical practitioners and counsellors Advocates and other organisations that investigate crime The change will not bite immediately; legislation will be brought forward ‘when parliamentary time allows’, the Ministry of Justice said. The Mo J also confirmed the bill will not capture NDAs signed before it secures royal...

Worldcoin, a crypto initiative backed by Open AI’s chief executive, Sam Altman, has been barred from gathering certain data in Portugal, only weeks after a comparable sanction in Spain. Portugal’s data protection authority said it had instructed the Worldcoin Foundation to implement, within 24 hours, a temporary restriction on the collection of biometric information. It must cease harvesting that category of data for 90 days while the regulator finalises its inquiry and delivers a definitive ruling, the Portuguese DPA said. The Worldcoin scheme lets individuals confirm they are human online by submitting to biometric capture via bespoke, orb-shaped iris scanners. In return for enrolling for a World ID, applicants are granted a one-off allocation of the cryptocurrency, also named Worldcoin. The urgent interim measure taken by the Portuguese DPA follows dozens of......

As the regulator intensifies its oversight of online financial marketing to curb scams and limit consumer detriment, it stated on 26 March 2024 that several Big Tech platforms have updated their rules to permit financial adverts only from FCA‑approved and authorised firms. Google, Bing ( Microsoft), Meta, X/ Twitter and Tik Tok are among those that have implemented policy changes. On the same date, the FCA issued finalised guidance for firms using social media and finfluencers to engage consumers, warning that promotions lacking the required approvals could amount to a criminal offence. Recently, the watchdog reported that it had amended or removed more than 10,000 financial promotions in 2023, a 17% increase on the previous year. The FCA has repeatedly......

In this issue: Advertising, marketing and sponsorship Confidential information Consumer protection Contracts Data protection International Daily and weekly news alerts New and updated content Dates for your diary Trackers Advertising, marketing and sponsorship ASA rulings—20 March 2024 A complaint was submitted to the Advertising Standards Authority ( ASA) about a wraparound national press advert that contained comparative claims which could not be substantiated, and a misleading statement on prices when set against 2023. The ASA upheld the complaint. The ASA likewise upheld complaints concerning loot boxes in Electronic Arts Ltd t/a EA, Jagex Ltd and Miniclip ( UK) Ltd, where paid-for Facebook adverts for a mobile app game and online games left out material information about the inclusion of loot boxes. The adverts all breached CAP Code ( Edition 12) rules 3.1 and 3.3 (...

In this issue: Advertising, marketing and sponsorship Consumer protection Contracts International Sale and supply of goods Daily and weekly news alerts New and updated content Dates for your diary Trackers Advertising, marketing and sponsorship ASA rulings—13 March 2024 Two complaints were filed with the Advertising Standards Authority ( ASA) alleging that ad content held strong appeal for people under 18 years of age. The ASA upheld one complaint and rejected the other. See: LNB News 13/03/2024 52. Court of Justice ruling clarifies limited role of IAB Europe in TCF The Court of Justice clarified IAB Europe’s position by issuing its ruling in IAB Europe v Gegevensbeschermingsautoriteit. The judgement arose from IAB Europe’s appeal against the Belgian Data Protection Authority’s ( APD) February 2022 decision concerning IAB Europe and the Transparency and Consent Framework ( TCF). This followed the Belgian Market...

In this issue: Advertising, marketing and sponsorship Agency and distribution Contracts E-commerce International Procurement Supplier management Lex Talk®Commercial: a Lexis®Nexis community Daily and weekly news alerts New and updated content Dates for your diary Trackers Latest Q& A Advertising, marketing and sponsorship UK cookie-banner offenders heading for enforcement, with hopes on AI to track down more, ICO says MLex reports that companies persisting with unlawful online cookie banners are squarely on the Information Commissioner’s Office ( ICO) radar, its head said, while launching a simultaneous ‘hackathon’ to build artificial intelligence ( AI) tools to locate non-compliant sites. Information Commissioner John Edwards told a conference that enforcement against some of the UK’s biggest websites already flagged as non-compliant will follow shortly. He also used the speech to underline that society’s use of AI is his office’s most significant and urgent priority. See News Analysis: UK cookie-banner offenders heading for enforcement, with hopes on AI to track down more, ICO...

Your Lawyers Ltd v Capital Interchange Ltd & Therium Capital Management Ltd; Your Lawyers Ltd v Capital Interchange Ltd & Therium Capital Ltd [2024] EWHC 287 ( Ch) What are the practical implications of this case? This was a lengthy, fact‑heavy judgment, and its chief value for practitioners lies in the court’s appraisal of the prospects of success in some less commonly encountered causes of action. The judge was able to rely on Court of Appeal decisions arising from prior litigation between the Claimant and another party said to be involved in the alleged breach of its confidence, Harcus Sinclair. It was common ground that the Second Defendant had passed on the contents of a ‘ Litigation Pack’ prepared by the Claimant to Harcus Sinclair; the contested issue was whether that pack contained sufficient detail to attract the necessary quality of...

Informality in contracting Risks connected with informal contracting are mounting. Emerging indications show that emojis used in correspondence may present a fresh hazard for those negotiating contracts. Commercial parties will recognise the core components of a contract: offer acceptance consideration intention to create legal relations certainty of terms Each is needed to create a binding contract in England and Wales. Although clear, formal, fully negotiated and finalised legal documents remain the gold standard, contracts may still arise informally. They can come about through exchanges of correspondence, for instance, or by conduct developed over a course of business dealings. Recent international decisions (see below) highlight a further informality risk—namely, that emojis used in messages during contractual negotiations and routine business practice can evidence an intention to create legal relations and can amount to acceptance of an offer. Electronic signatures and the UK...

Enforcement against those already identified as non-compliant is coming At a privacy conference in London, Information Commissioner John Edwards warned that action is imminent. “ Our bots are coming for your bots,” he said, describing a coding challenge his office launched on 28 February 2024 with external experts, using AI to scan websites and verify cookie banner compliance. Flagged earlier in 2024, the hackathon complements established enforcement. In November 2023, the ICO wrote to 53 of the largest websites with non-compliant cookie banners. By January 2024, the ICO said 38 had complied and four more would do so within a month. That figure has not shifted, Edwards added, and enforcement now awaits the remainder. Enforcement is coming for the rest, he confirmed......

In this issue: Advertising, marketing and sponsorship Confidential information International Public procurement Daily and weekly news alerts New and updated content Dates for your diary Trackers Latest Q& As Advertising, marketing and sponsorship UK cookie-banner offenders are edging towards enforcement action, with hopes that AI will uncover more, the ICO says. Firms that continue to run unlawful cookie banners online are now squarely in the Information Commissioner’s Office ( ICO) sights, its chief said, as he unveiled a parallel ‘hackathon’ to develop artificial intelligence ( AI) tools to locate non-compliant sites. Information Commissioner John Edwards told a conference that enforcement will shortly follow for several of the UK’s biggest websites already found to breach the rules. He also used his remarks to stress that society’s use of AI is his office’s most...

Motoring Organisation Ltd v Spectrum Insurance Services Ltd [2024] EWHC 261 ( Comm) What are the practical implications of the case? This judgment explores a range of matters of genuine importance to commercial practice, notably the circumstances in which fiduciary duties might arise out of contractual negotiations, the extent of any such duties, and the potential for contractual liability to be implied from discussions concerning a merger. What was the background? Both companies provided insurance warranties for vehicles via motor dealerships. Their directors had previously worked together at a business named Warranty Holdings Ltd, and thereafter went on to create and develop separate, competing ventures. Between 2015 and 2019 there was an ongoing sequence of discussions and exchanges about potential co‑operation between the businesses, which culminated in a proposal that The Motoring Organisation ( TMO) would acquire a majority of Spectrum’s shares, although the exact terms of any...

Legal Service Board report: The misuse of non-disclosure agreements: call for evidence themes and summary of evidence The LSB reported that clients and their legal advisers deploy these binding agreements to hide conduct that is lawful yet unethical, including bullying, settlements involving consumer products, and conflicts in construction and building. Numerous respondents also indicated NDAs are used across workplaces to conclude employment disputes. Matthew Hill, the LSB’s outgoing chief executive, voiced his gratitude to those who contributed to the review, which ran from May to July, noting that the exercise helped to illuminate a corner of legal practice that is, by its very nature, hidden. He further observed that the recurrent patterns set out in the report demonstrate that, when NDAs are misused, the consequences for people’s lives can be devastating......

PSN Recruitment Ltd (trading as Cosmopolitan) v Ludley and Greenscape Specialist Recruitment Ltd [2023] EWHC 3153 ( IPEC)) What are the practical implications of this case? This judgment strengthens established principles on confidentiality and the law of confidence, and clarifies how protected confidential material should be assessed and categorised. Whilst it cannot be presumed that any client database is automatically confidential, a significant line of authority indicates that lists containing active and target client contact details typically satisfy the requirements for confidence, and this ruling now further endorses that stance. The decision also highlights the need for parties to provide full cooperation to the court and to avoid obstructive conduct, reflected both in the approach to the damages award and, more broadly, in Her Honour Judge Clarke’s remarks on the defendant’s behaviour and conduct throughout. In particular, Ludley’s destruction of evidence and his breach of the duty owed to...

Facts [2023] EWHC 3269 ( Comm) The dispute stemmed from two crude oil sale and purchase agreements between the applicant, Premier, as seller, and the defendant, Shell, as buyer (the Contracts). Each contained a comprehensive and, for relevant purposes, identical pricing formula under which the price was to be determined, among other matters, by reference to “the average of the high and low daily quotations for Urals Rotterdam versus Med Dated Brent Strip as published in Platts ( AAGXJ00)” (the Urals Assessment). The Contracts also stipulated that, if Platts implemented a material modification to the heading or contents of assessments relied upon in the pricing structure (including the Urals Assessment), the parties would agree an alternative pricing source. If they failed to reach agreement, a referee would be appointed to select the alternative source. Following the imposition of European sanctions on Russia, Platts made a...

In this issue Advertising, marketing and sponsorship Contracts E-commerce International Supply of services Daily and weekly news alerts New and updated content Dates for your diary Trackers Latest Q& As Advertising, marketing and sponsorship ASA rulings—21 February 2024 The Advertising Standards Authority reviewed a complaint about a paid Facebook ad for Happyo, a behaviour programme targeting individuals with ADHD. The ASA questioned whether the ad complied with the CAP Code and if it risked discouraging necessary ADHD treatment, and the complaint was upheld. See: LNB News 21/02/2024 50. Contracts Contractor was bound by cap in letter of intent ( CLS v WJG Evans) The Technology and Construction Court held that no formal construction contract was concluded for the development, leaving the parties operating under a letter of intent ( LOI). As a result, the...

Municipio de Mariana and others v BHP Group ( UK) Ltd and another [2023] EWHC 3281 ( TCC) What are the practical implications of this case? This decision offers clear direction for practitioners on two fronts. First, it addresses issue estoppel and collateral attack as bases for striking out a defence on abuse of process grounds. Second, it considers when an arbitration clause can be construed to capture non-signatory third parties, notably where those entities sit within multi-layered corporate groups. The court reiterates its methodology for construing contracts in this context: the focus remains on the parties’ expressed intentions, assessed case by case, rather than adopting a broadly expansive interpretation across all situations... What was the background? In 2015, Brazil experienced a major environmental catastrophe following the failure of the Fundão Dam. The dam was owned and operated by Samarco Mineração SA (‘ Samarco’), a company jointly owned by Vale S. A....

CLS Civil Engineering Ltd v WJG Evans and Sons (a partnership) [2024] EWHC 194 ( TCC) What are the practical implications of this case? This judgment addresses two principal issues of interest to construction lawyers: Letters of intent: The dispute starkly demonstrates the hazards of progressing works under an LOI without putting a formal contract in place. As is frequently seen, the LOI set a financial ceiling on payments to the contractor. The parties did not conclude a formal building agreement or lift that ceiling—so the court held the contractor’s recoverable amount was confined to a figure below its valuation of the finished works. LOIs create exposure and ambiguity for both employer and contractor, reinforcing the need to sustain momentum towards executing a full contract, and to ensure LOIs adequately cover the core elements of the relationship and the works (including price, the timeframe for...

In this issue: Advertising, marketing and sponsorship Agency and distribution Consumer protection Contracts E-commerce Intellectual property International Daily and weekly news alerts New and updated content Dates for your diary Trackers Advertising, marketing and sponsorship ASA rulings—14 February 2024 Complaints were lodged with the Advertising Standards Authority ( ASA) about four X (formerly Twitter) posts from three Supreme CBD accounts. The posts were not clearly signposted as marketing communications, failed to make their promotional nature apparent, and included both explicit and implied assertions that Supreme CBD products could alleviate anxiety and insomnia, and prevent, treat or cure disease. The ASA upheld the complaints. See: LNB News 14/02/2024 35. IAB Tech Lab releases analysis of Google’s Privacy Sandbox The IAB Technology Laboratory ( Tech Lab) has published its assessment of Google’s plan to remove third-party cookie tracking from Chrome and replace it with the Privacy Sandbox. The assessment found that implementing the Privacy Sandbox raises significant issues, including...