Legal News

James Kemball Ltd v ‘ K’ Line ( Europe) Ltd [2022] EWHC 2239 ( Comm) What are the practical implications of this case? When attempting to terminate a contract pursuant to its provisions, nothing replaces a meticulous reading of the clauses and a mapping of the established facts against them. Precision about the language and the facts is vital so the selected ground aligns with the situation. Misalignment risks failure and lost opportunities entirely. Here, Kemball pinned its case on a provision that did not correspond with the circumstances and overlooked another clause that could have helped. In addition, Kemball neglected to consider, in the alternative, the common law route of repudiatory breach rather than relying solely on the express terms of the agreement. What was the background? Kemball operated a business hauling shipping containers by road. K Line was a wholly owned subsidiary of a major group...

Court considers concurrent delays and repudiation in post-termination dispute ( Thomas Barnes & Sons plc (in administration) v Blackburn with Darwen Borough Council) Thomas Barnes & Sons plc (in administration) v Blackburn with Darwen Borough Council [2022] EWHC 2598 ( TCC) What are the practical implications of this case? This judgment touches on several matters of real concern to construction practitioners: overlapping delay, the JCT suite’s termination machinery, and the law of repudiation. On concurrency, the court essentially affirmed the approach in Walter Lilly v Mackay, holding that where employer and contractor delays run together, the contractor will typically obtain additional time, yet will not recover the financial consequences of prolongation—often summed up as ‘time, but no money’. The court’s commentary on the rival expert delay analyses will likewise assist those preparing or defending applications for extensions of time. Among other points, it indicated in general terms, that...

The United Kingdom General Data Protection Regulation, Retained Regulation ( EU) 2016/679, and the Freedom of Information Act 2000 ( FIA 2000) oblige public and private bodies to reply to subject access requests within one to three months when people seek details of the personal data those organisations hold about them. Yet, on 28 September 2022, the ICO announced that an investigation had found Virgin Media, the Ministry of Defence, the Home Office, the London Borough of Croydon, Kent Police, the London Borough of Hackney and the London Borough of Lambeth had 'repeatedly failed' to meet this statutory deadline. Following these conclusions, the regulator issued reprimands to all seven organisations and, under the FIA 2000, practice recommendations to two of the London boroughs. The agency added that these bodies have three to six months to make improvements or 'further...

The repeal of 2017 and 2021 reforms from April 2023 has been announced by the UK government as part of the Growth Plan 2022 presented by the Chancellor of the Exchequer in his ’mini budget’ statement to Parliament. This move follows the new Prime Minister’s pledge to review IR35 and forms part of a broader drive to boost economic growth by trimming regulation and cutting taxes. The plan indicates the change will reduce Treasury tax receipts by £1–2bn per year. At first glance, many hirers and suppliers of contract workers are likely to welcome the shift, seeing a chance to revert to more tax‑efficient engagement through personal service company ( PSC) arrangements. Under the current rules, however, clients and suppliers can be on the hook if a PSC worker is, in reality, not truly self‑employed—an assessment that is notoriously...

What are the practical implications of this case? Braceurself Ltd v NHS England [2022] EWHC 1532 ( TCC) underlines key lessons for both sides of a procurement dispute. For advisers to disappointed tenderers, it indicates that pursuing a broad challenge on multiple grounds can be a sound strategy where even a small upward tweak to scoring might have decisively changed the result. For contracting authorities, it is a sobering reminder that, even in a process that is otherwise well organised and meticulously planned (as acknowledged by Mr Nissen QC), evaluators must accurately grasp the substance of a bidder’s reply and must not allow irrelevant factors to influence the mark awarded. Further, Mr Nissen QC confirmed the correct judicial approach when claims of manifest error are advanced against an authority. Following the reasoning of Mr Justice Fraser in Bechtel Ltd v High Speed Two ( HS2) Ltd...

With the global shift towards net zero, a swell of lawsuits targeting firms that misrepresent their offerings as green is looming. However, although the UK watchdog has repeatedly vowed to tackle ‘greenwashing’, including through enforcement, the law does not invariably favour the Financial Conduct Authority ( FCA). As environmental activists and disgruntled investors bring claims against businesses for overstating the sustainability of their products, the regulator’s capacity to intervene will seem ever more constrained unless its powers are strengthened. Without stronger powers, the regulator’s ability to act will look increasingly reduced, particularly as allegations accumulate and claimants press for action against exaggerated sustainability claims. Activity on sustainable finance is progressing at pace in the UK. In November 2020, the government was first to unveil mandatory climate-risk reporting. By the close of 2023, major financial institutions and listed corporates must publish...

Background The UKIPO’s first call for evidence on AI and IP, running from 7 September to 30 November 2020, aimed to gather answers to numerous questions across patents, copyright, trade marks, designs and trade secrets. Feedback to that exercise highlighted concerns about the balance in the copyright regime between safeguarding human-created works and those produced by AI. Regarding patents, participants flagged potential obstacles to innovation as reliance on AI systems grows. For further details on that process, see News Analysis: Call for views on AI and IP—the UK government response. Building on those findings, the UKIPO opened an additional consultation to probe the key matters in greater depth. The resulting government response was issued on 28 June 2022 (see: LNB News 28/06/2022 48), and is considered below. Copyright and computer-generated works ( CGWs) The initial question for government was whether creations generated by a...

Gama Aviation ( UK) Ltd and Another v MWWMMWM Ltd [2022] EWHC 1191 ( Comm) What are the practical implications of this case? Key takeaways for practitioners include: NOM clauses: A party’s contractual rights and duties can be altered not only by variation but also by novation or termination. Anyone aiming to prevent such informal changes should adopt wording that makes this intention explicitly clear. contractual rights to terminate: Even where a clause grants a unilateral right to terminate by written notice, this may not stop the contract being discharged by an informal novation; whether it does will turn on the clause’s wording and the surrounding context. on covenants: As only reasons that genuinely influenced a party’s mind can justify the reasonableness of a refusal of consent, a party withholding consent should record its reasons at the time. The decision also supports...

Armstead v Royal Sun Alliance Insurance Company Ltd [2022] EWCA Civ 497 What are the practical implications of this case? The Court of Appeal considered how far a tortfeasor is responsible in bailment and tort for an owner’s loss of use where hired equipment is damaged, in proceedings brought by the hirer. It ruled that, although a bailee may reclaim the cost of repairing the hired equipment from a negligent tortfeasor, the bailee cannot recover sums fixed by contract with the bailor (the hire company) for the bailor’s loss of use. Because the item involved was a car hired under a credit hire insurance policy, the decision is naturally pertinent to vehicle hire arrangements in general and to credit hire insurance claims in particular. Yet the principles explored, applied and developed in the judgment, particularly on pure economic loss and the scope of the duty of...

Fuhrmann-2- Gmb H v B Case C‑249/21 What are the practical implications of this case? The Court of Justice held that, when assessing compliance with Directive 2011/83/ EU (the EU Consumer Rights Directive), only the wording displayed on the order confirmation button itself counts in showing that, at the moment of ordering, the consumer clearly accepts that their action entails an obligation to pay. Consequently, traders must take particular care with the precise text used on any button that signifies a payment commitment... The European Commission’s latest guidance on the EU Consumer Rights Directive further clarifies that the order button on a website must be clearly labelled, with the relevant indication placed on the button or directly alongside it. Examples that express the required message include: buy now pay now confirm purchase By contrast, expressions such as: register confirm order...

DM v CTS Eventim AG & Co KGa A Case C‑96/21 What are the practical implications of this case? The ruling makes clear that customers lack a withdrawal right from agreements for cultural or sporting events fixed for a specific date where attendance is limited, irrespective of whether they reserved directly or through a middleman. Note too that Directive 2011/83/ EU (the EU CRD) is being amended by Directive ( EU) 2019/2161, the EU Omnibus Directive, which applies from 28 May 2022; the European Commission has therefore revised its guidance, and that guidance aligns with this outcome. That guidance mirrors the decision and reinforces that approach for such events in the Commission's materials. Although an EU judgment, it remains pertinent to UK businesses, as UK courts may have regard to EU case law, and UK companies sell to consumers across the EEA. What was the...

What are opt-out claims and why are they big business? The Competition Act 1998 ( CA 1998) was revised in 2015 to allow a representative opt-out action to be pursued. In essence, one individual may sue on behalf of every person within the jurisdiction who has suffered from unlawful anti-competitive conduct, and seek compensation for them (to be allocated afterwards). The potential headcount and the scale of any award can be staggering. In the case brought against Mastercard, the class comprises around 40 million people (all living UK-based adults who have ever purchased from a retailer that took Mastercard), and the sum demanded is about £14bn. Why are costs arrangements relevant? To secure a collective proceedings order—effectively the green light to advance the case—specified requirements in the CA 1998, the Competition Appeal Tribunal Rules 2015, the CAT Guide and the authorities must be met. First, there must be an...

Leave. EU Group Ltd and another v Information Commissioner [2022] EWCA Civ 109 What are the practical implications of this case? This decision distils the key considerations a court will weigh when deciding how to handle an appeal where one party is absent. In relation to appeals originating in the Upper Tribunal, it delivers a detailed examination of the scope of the Court of Appeal’s powers under the Tribunal Procedure ( Upper Tribunal) Rules 2008 ( TP( UT) Rules 2008), SI 2008/2698, and then tests whether the applicable thresholds are met on the facts, including whether the hearing was duly notified and whether proceeding serves the interests of justice. For appeals that do not come from the Upper Tribunal, the judgment confirms the court’s inherent jurisdiction to continue with an appeal despite a party’s non‑attendance. Finally, practitioners will welcome the court’s remarks on the...

Olympic Council of Asia v Novans Jets LLP [2022] EWHC 88 ( Comm) What are the practical implications of this case? Many of the conclusions flowed from the fact that neither side had lawyers involved in preparing the agreement. That omission made the terms hard to construe—first for the parties when deciding how to deal with the disputed invoice, and then for the court when determining the outcome. Acknowledging the potential injustice of a purely literal approach, Mrs Justice Moulder signalled that the court will consider the surrounding commercial context, particularly where the drafting is ambiguous and there is a real danger the parties accepted provisions which, with hindsight, did not advance their interests (para [163]). The decision also serves as a caution to those attempting to invoke contractual remedies before engaging with their opposite number. In assessing whether there had been a...

Judgments in Joined Cases Azurair and others, Cases C-146/20, C-188/20, C-196/20 and C-270/20, Airhelp, Case C-263/20, and Corendon Airlines, Case C-395/20 What are the practical implications of these cases? These rulings carry two key practical consequences for operating carriers governed by Regulation ( EC) No 261/2004 (the Regulation): Airlines must scrutinise timetable alterations, not only where they plan to push departures back (i.e. a delay for the purposes of the Regulation) but also where they intend to set off more than one hour earlier than scheduled, so as to avoid exposure to cancellation compensation. Article 5 of Regulation ( EC) No 261/2004 sets out compensation for cancelled flights and requires payment unless passengers are actually told in advance (and receive that notice), which may prove expensive if overlooked. Carriers are likewise reminded to provide passengers with clear information on their...

IHRAR report The IHRAR’s publication is an exceptionally comprehensive and highly impressive piece of analysis. It accepts as a fixed point the government’s commitment to remain a party to the European Convention on Human Rights ( ECHR). This includes the ability of individuals to petition the European Court of Human Rights ( ECt HR) in Strasbourg once domestic avenues of redress are exhausted. Throughout the IHRAR there is recognition that reforms restricting people’s capacity to enforce rights in the UK courts may prompt more cases going to Strasbourg, which would ‘run counter to the HRA’s original objective of bringing rights home’, rather than resolving matters within the domestic legal system. The IHRAR proposes only limited amendments to the HRA itself. They are notably restrained and incremental in nature overall. The principal ones are: a modification to the test in HRA 1998, s 2, which...

Mars Capital Finance Ltd v Hussain and others [2021] EWHC 2416 ( Ch) What are the practical implications of this case? This ruling underlines that, after a transfer of land has been entered on the register, any prior defects in the enforceability of the underlying contract for that transfer cease to matter. Accordingly, earlier formal shortcomings cannot be used to unsettle a completed, registered disposition. That principle is clear and decisive here. In addition—though not essential to the outcome—the judge endorsed the position that sections 43 and 44 of the Companies Act 2006 permit three mechanisms for a company to enter a written contract (by the company or on its behalf). This contrasts with the interpretation that, for the purposes of the Law of Property ( Miscellaneous Provisions) Act 1989, only two methods exist, and it departs from Lewison J’s approach in Redcard Ltd v...

The Software Incubator Ltd v Computer Associates UK Ltd Case C‑410/19 What are the practical implications of this case? The Court of Justice has issued the most recent ruling in a protracted dispute first considered by the High Court in 2016, arising out of an agreement that was terminated in 2013. The case will now return to the Supreme Court which, pursuant to Articles 86 and 89 of the UK/ EU Withdrawal Agreement, is obliged to give effect to that judgment. Although the Supreme Court’s final position is still awaited, the decision is expected to carry major consequences for software resellers who, acting as commercial agents, may rely on the protections and remedies provided by the Commercial Agents Regulations, SI 1993/3053, irrespective of the format or medium through which software is supplied to customers. It is likewise important for principals that deploy...

Galer v Mond (administrator of SFPL Ltd) and another [2021] EWHC 1952 ( Ch), [2021] All ER ( D) 110 ( Jan) What are the practical implications of this case? Several elements of this ruling turn on the precise wording of the facility agreement and the deed of assignment, so its broader relevance is limited. Even so, the court set out helpful general guidance: in the absence of any evidence of misconduct, it is wholly improper to imply that a particular administrator will fail to fulfil their duties properly. The judge made plain that one cannot obtain a declaration that an administrator’s appointment is invalid by relying on what he described as 'a smokescreen of general allegations'... What was the background? SFPL Ltd ( SFPL) was incorporated in August 2016 as a vehicle for the acquisition and development of a property in London. There were a number of...

Pakistan International Airline Corporation v Times Travel ( UK) Ltd [2021] UKSC 40 What are the practical implications of this case? This Supreme Court ruling delivers a timely and thorough reassessment of the law on lawful act economic duress. Divergent judicial approaches in the case underscore the area’s complexity and challenge. The claim of lawful act duress prevailed at first instance, but the Court of Appeal reversed that outcome. The Supreme Court affirmed the Court of Appeal, though only one Justice, Lord Burrows, adopted its reasoning. The majority advanced a different analysis yet ultimately agreed that this was not a case of lawful act economic duress. The extent of disagreement is regrettable, given the core question: how far parties in commercial bargaining may leverage inherent advantages to obtain a stronger negotiated position from a weaker counterpart. That is a practical concern...