Legal News

Times Travel ( UK) LTD v Pakistan International Airlines Corporation [2019] EWCA Civ 828 What are the practical implications of this case? This judgment makes clear that a contract will not be rescinded for economic duress where: the pressure applied is lawful, and the party applying that pressure genuinely believes they are entitled to act as they did, even if that belief might be criticised as unreasonable The decision also underlines the limited statutory framework for commercial agreements, confirming that such contracts cannot be avoided simply because of the lawful use of a monopoly or disparities in power or bargaining strength. Any evolution of the law in these fields is a matter for Parliament rather than the common law... What was the background? Times Travel ( TT), a small family-run travel agency in Birmingham, was in 2008 accredited by the...

BV Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises, Inc. [2019] EWCA Civ 596 What are the practical implications of this case? This appeal sharpens the test for fraudulent misrepresentation and evidential presumption. The representee must show that the statement was a real, factor in the decision to enter the contract, consciously operating on their mind. Where a statement is of a kind likely to persuade, the law presumes it did so. Although that presumption is not easily displaced, the ruling underlines that the burden of proof remains with the claimant and is not flipped. The court also addressed transferred loss, confirming it as a helpful yet narrow exception to the basic rule that a claimant recovers only the loss they have sustained. In addition, the judgment serves as a reminder to respect the distinctness of companies in a corporate group when assessing loss. Parties cannot take...

Seddon v Driver and Vehicle Licensing Agency [2019] EWCA Civ 14, [2019] All ER ( D) 139 ( Jan) What are the practical implications of the judgment? The Court of Appeal in Seddon v Driver and Vehicle Licensing Agency held that the agency owes no duty of care to would‑be buyers of registered historic vehicles, notwithstanding knowledge that a car is being marketed and that questions have been raised about its identity and age. Of broader significance, and useful to practitioners generally, is Hamblen LJ’s succinct restatement of the factors the courts regard as pertinent when deciding whether to recognise a duty of care in claims for pure economic loss, providing a guide to the circumstances in which such a duty may, in principle, be imposed. What was the background? The respondent is an executive agency, sponsored by the Department for Transport, tasked under the Vehicle Excise and...

Awbury Technical Solutions LLC v Karson Management ( Bermuda) Ltd [2019] EWHC 233 ( Comm) What are the practical implications of this case? This decision explores the interaction between section 12(3) of the Human Rights Act 1998 ( HRA 1998) and applications for interim injunctions to restrain the use of confidential information in a commercial setting. Although Butcher J did not foreclose the possibility that, in a business context, such relief might amount to an interference with freedom of expression, his judgment indicates that will seldom be so. In particular, where the communication serves only to advance the communicator’s financial interests, is directed to a very small group of recipients, and there is no suggestion that the material is journalistic, literary or artistic, the right to freedom of expression will generally not be engaged. The decision also appears to be the first in England and Wales to...

What impact do the Business Contract Terms ( Assignment of Receivables) Regulations 2018 have on rights of set-off (contractual and other)? The explanatory memorandum to the Business Contract Terms ( Assignment of Receivables) Regulations 2018, SI 2018/1254 (the Regulations), states plainly that these provisions are introduced to render ineffective terms in specified contracts that restrict the assignment of receivables, with effect from 31 December 2018. As a result, many businesses that were previously prevented by contractual limitations will now be able to assign receivables and utilise products such as invoice financing in relation to sums owed to them. This may influence the right of set-off, as some businesses could opt for rapid liquidity by assigning receivables to a third party through arrangements like invoice finance, rather than exercising any right of set-off against invoices presented to them. The principle of set-off is firmly...

UKI ( Kingsway) Limited ( Respondent) v Westminster City Council ( Appellant) [2018] UKSC 67 What is the law in this area? Liability for non-domestic rates turns on a property being recorded as a hereditament in the rating list. A newly constructed building is added to that list once a completion notice has been validly served. The notice fixes the date on which the building is deemed to be complete. What was the background? The dispute concerned the purported service of a completion notice intended to bring a new, unoccupied building into the rating list. The Court of Appeal upheld the appellant’s appeal against the decision of the Upper Tribunal ( Lands Chamber) ( UT), which had found that a completion notice had been served on it, despite the fact that transmission was effected through a person not authorised to accept service......

Average fine for data breaches doubles to £146,000 in just a year What is this development about? Average penalties issued by the ICO have risen to £146,000 ($185,888), up from £73,000 in the equivalent 12‑month period, research from RPC indicates. The aggregate value of sanctions increased by 24% to £4.98m, compared with £4m a year earlier. Richard Breavington, a partner at the firm, said the regulator is showing more bite and a readiness to echo public sentiment, noting that the necessary mindset and authority are in place and that there has been a marked shift. The GDPR took effect in May 2018 and permits fines of €20m ($22.7m) or 4% of annual global turnover, whichever is greater. Before May 2018......

What are the definitions of ‘service provider’ and ‘information society services’ under the E- Commerce Directive and the Electronic Commerce ( EC Directive) Regulations 2002? The E- Commerce Directive ( Council Directive 2000/31/ EC) and the Electronic Commerce ( EC Directive) Regulations 2002 ( SI 2002/2013) state that a ‘service provider’ is any natural or legal person who supplies an information society service. Recital 17 of the E- Commerce Directive describes ‘information society services’ as any service typically supplied for remuneration, delivered at a distance, using electronic equipment for the processing (including digital compression) and storage of data, and provided at the individual request of the recipient. The notion of ‘information society services’, together with related terms such as ‘at a distance’ and ‘at the individual request of a recipient of services’, is further clarified in Article 1(1) of Directive 2015/1535/ EU. The condition that a...

How has the exemption available for controllers under the GDPR in relation to liability to compensate data subjects changed? Under the earlier Data Protection Directive 95/46/ EC ( Article 23(2)), where a person was entitled to damages from a controller due to unlawful processing, the controller could rely on a potential exemption if it was not responsible for the event that caused the loss. Recital 55 offered two illustrations of situations for which the controller would not bear responsibility: a mistake by the data subject, and a case of force majeure The language of these provisions lacked clarity, and the concept of ‘force majeure’ has no consistent definition across EU legal systems (it does not even carry a settled meaning in English law, depending heavily on contractual wording). Unsurprisingly, this carve-out, and the reference to force majeure, was therefore loosely carried across into...

Burki v Seventy Thirty Ltd; Seventy Thirty Ltd v Burki [2018] EWHC 2151 ( QB) What was the background? These proceedings stemmed from Ms Burki’s dissatisfaction with the service delivered by 70/30, a matchmaking company to which she paid £12,600 for assistance in finding a romantic partner. On its website, 70/30 promoted itself as an ‘ Exclusive Matchmaking and Elite Introduction Agency’, stating that its members are high net-worth individuals drawn from diverse and distinctive backgrounds, nationalities, lifestyles and industries. During meetings and discussions with 70/30 personnel, Ms Burki made clear that any prospective partner must be willing to have children and, ideally, be of comparable wealth. Staff showed her member profiles and gave her information about 70/30 which, in substance, indicated there was a significant cohort of affluent male members who were actively involved with the agency’s matchmaking services. Ms Burki entered into a...

SRCL Ltd v National Health Service Commissioning Board (also known as NHS England) [2018] EWHC 1985 ( TCC) What are the practical implications of this case? The court delivered a series of significant observations that merit close attention across multiple aspects of the dispute. On procedure, it highlighted the centrality of agreed lists of issues, stating that a List of Agreed Issues is an essential device in contemporary litigation, not just in the specialist courts but across the High Court. The court was distinctly unimpressed by SRCL’s effort to advance a new contention at trial that had not appeared on the agreed list, determining that parties should be bound by what they have settled in that list rather than treating it as merely indicative. As to limitation, the judgment demonstrates that the short time limits under the Public Contracts Regulations 2015 SI 2015/102 ( PCR...

James Plummer v Royal Herbert Freehold Limited [2018] Lexis Citation 48 What are the practical implications of this case? Businesses that previously regarded themselves as landlords may, in reality, be treated as service providers and therefore have an anticipatory duty to make reasonable adjustments. As a result, the needs of disabled people must be accommodated, and importantly this applies even where there are currently no disabled users of the service. A further consequence is that, as a service provider, the company must consider altering physical features—a duty not imposed on landlords under the Equality Act 2010 ( EA 2010). Another practical point concerns the potential scale of injury to feelings awards—in this matter, £9,000 was awarded, the highest known award in a civil disability discrimination claim. PSLProperty comment: The County Court is not a court of record, therefore the judgment carries no...

It is common for suppliers in commercial services agreements to seek to generally exclude all their liability for ‘loss of data’—what sorts of potential claims would such an exclusion cover and what is the commercial rationale for including such a clause? As GDPR ( Regulation ( EU) 2016/679) neared its 25 May 2018 start date, these discussions became increasingly routine, with many organisations looking to ‘repaper’ and revise existing contracts to secure GDPR compliance. The term ‘loss of data’ has no statutory definition, so its scope must be read in the context of the particular agreement. In practice, it would usually be treated as catching claims arising from: Destruction of data Corruption of data Accidental disclosure of data Theft of data This would apply however the issue arose—eg through a virus, power failure, mechanical fault, human error or a...

Original news Trade Secrets ( Enforcement etc) Regulations 2018, LNB News 18/05/2018 76 SI 2018/597 Measures are introduced to give effect to EU Trade Secrets Directive 2016/943/ EU, which protects undisclosed know‑how and business information (trade secrets) against their unlawful acquisition, use and disclosure. While several provisions of Directive 2016/943/ EU are already reflected in UK law, these Regulations address the areas where gaps remain and where implementing the Directive will secure legal certainty, making the law more transparent and coherent across all UK jurisdictions in relation to proceedings about the unlawful obtaining, use or disclosure of a trade secret. The Regulations take effect on 9 June 2018. What is the background to the Regulations and Trade Secrets Directive? Historically, protection for trade secrets has been inconsistent across EU Member States. Around a third of Member States have no specific legislation addressing the...

Hotlinking does not constitute copyright infringement ( Wheat v Alphabet Inc/ Google LLC & Anor) Wheat v Alphabet Inc/ Google LLC & Anor [2018] EWHC 550 ( Ch) (26 March 2018) What are the practical implications of this case? The decision addresses the thorny issue of whether hotlinking can give rise to claims for breach of contract or copyright infringement. Its technical effect may divert searches away from the originator’s site to an aggregator, with a corresponding loss of advertising revenue. The case shows how evolving technology disrupts existing business models, and the difficulties of pursuing remedies for perceived wrongs within legal frameworks that can lag behind innovation. It further highlights the perils for litigants in person stepping into areas that test even experienced litigators. What was the background? The claimant, acting in person, runs the website...

When does the ‘right to be forgotten’ as established through case law ( Google Spain v AEPD ( Marion Costeja Gonzalez) arise and what does it aim to achieve? The so‑called ‘right to be forgotten’, crystallised in Google Spain, Case C‑131/12, [2014] All ER ( D) 124 ( May), recognises that data subjects may ask search engine operators processing personal data in the context of an EU establishment to remove links to their personal data from indexes and results for particular search queries. Whether such removal must extend to every domain run by a search engine remains disputed. This entitlement applies where, taking all the circumstances into account, personal data is: inadequate irrelevant or no longer relevant excessive in relation to the purposes of the processing undertaken by the search engine operator. In Google Spain, the European Court of Justice concluded that, as a...

The defendant challenged the decision, arguing that the judge erred in finding that the claimant, exercising reasonable diligence, could not have uncovered the defendant’s concealment of the pertinent facts more than six years before issuing the claim form. The Court of Appeal rejected the challenge, concluding that the defendant had failed to demonstrate that the judge was plainly wrong, meaning a conclusion that no reasonable judge could have reached. Authored by John Bignall, barrister at 7 King’s Bench Walk. Gresport Finance Ltd v Battaglia [2018] EWCA Civ 540 What are the practical implications of this case? The dispute centred on an effort to overturn a factual determination made by the trial judge, in a context where no misdirection in law or any flaw in the judge’s approach was asserted. The decision underscores the very stringent threshold that must be met to upset such a...

Clin v Walter Lilly & Co Ltd [2018] EWCA Civ 490, 177 Con LR 1 What are the practical implications of this case? The ruling shows that a construction contract may carry an implied term requiring the employer to pursue planning approvals. Yet it is unlikely to amount to an unqualified duty to secure those approvals, given the inherent unpredictability surrounding approvals. In real terms, a curtailed duty on the employer to ‘use all due diligence’ to obtain approvals may leave the contractor absorbing the fallout—typically extra expense and exposure to delay damages—if a local authority behaves unreasonably. The safer course is to stipulate in the contract, in express terms, who bears responsibility for planning approvals, the scope of that responsibility, and the ramifications if approvals are not forthcoming. What was the background? Walter Lilly was engaged by Mr Clin to undertake demolition,...

Ehrentreu v IG Index Ltd [2018] EWCA Civ 79 What are the practical implications of this case? The judgment underscores that only very clear and express contractual language will suffice before a court will conclude that a party has undertaken an obligation to safeguard another from harming themselves. In particular, the court held that the appellant’s decision to remain active in the relevant market and to keep his bets open was a deliberate choice made by him, and stood apart from any breach of the Customer Agreement by the respondent. Whether approached as an issue of causation or of a failure to mitigate, it was that decision, rather than the breach, which produced the loss. Moreover, the respondent had not assumed responsibility for the risks inherent in the appellant’s continued speculation. The Court of Appeal considered that instances where contracts contain the...

What are the practical implications of this case? Zurich Insurance Plc v Nightscene Ltd [2017] Lexis Citation 445. This ruling is significant, first and foremost, for its analysis of the application of the rule in Shah [2001] EWCA Civ 527 to Deeds executed by companies. Those acquainted with Shah will remember that it addressed the effectiveness of a Deed executed by private individuals. They contended the Deed was ineffective because their signatures had not been attested at the time of signing, so the requirements of s1 of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989) were not fulfilled. The court rejected that case, holding the individuals were estopped from denying the Deed’s validity, essentially because it appeared, on its face, to have been duly executed when it reached the receiving party. This decision logically confirms that the Shah...