Legal News

What was the background? The claimant, Mr Fentiman, is the chief executive of Specialist Hygiene Solutions Limited ( SHS), which operates under the name Hygiene Solutions. The defendant, Mr Marsh, had previously been a customer of SHS. The libel action arose initially from four online posts authored by Mr Marsh on blogging sites, Twitter and Linked In. In the first of these publications, he alleged there had been an unlawful and cowardly cyber-attack on the whistleblower website deproxfraud.info and on his personal Facebook and Linked In pages, asserting that this had merely served to alert the NHS, Public Health England and the Health and Safety Executive to what he described as the grubby and unethical behaviour of ‘ Rick’ Fentiman and his ‘minions’ at Hygiene Solutions Ltd. Mr Fentiman pleaded that the natural and ordinary meaning of that post was that he was the person...

Yavuz v Tesco Stores Limited and another [2019] EWHC 1971 ( QB) What are the practical implications of this case? This uncommon slander dispute stemmed from a confrontation in a supermarket between a shopper and a member of staff. It underlines the hurdles a claimant faces in slander actions, where they must prove the exact words were spoken as alleged. Success therefore turns heavily on the quality of witness testimony. The court focused closely on witness assessment, reflecting Tugendhat J’s approach in Cambridge v Makin [2011] EWHC 12 ( QB), namely that credibility is best judged by how a witness’s account aligns with established facts and with their prior statements or conduct. Here, the claimant was not considered a compelling witness, whereas the assistant said to have uttered the defamatory words gave evidence in a calm and measured way. In addressing whether there was...

Morgan v Times Newspaper Ltd [2019] EWHC 1525 ( QB) What are the practical implications of this case? This decision addresses the test for assessing whether remarks about professional competence are defamatory. The defendant maintained that defamation of a person’s professional (or business) reputation requires an imputation of an habitual or entrenched trait, not a single episode of negligence or ineptitude. The court emphatically rejected that contention, explaining that one instance of incompetent professional work can harm reputation as much as a charge against overall competence—illustrated by a barrister whose performance in one case could be decisive. The judgment also offers a useful synthesis of the authorities in this area, including discussion and application of Skuse v Granada Television Ltd [1996] EMLR 278, together with consideration of various commentary on the topic. What was the background? This libel claim arose from an article published by the...

What does Article 79 of the GDPR provide and is that consistent with Brussels I (recast)? Article 79(2) GDPR states that actions against a controller or a processor must be issued before the courts in the Member State where the controller or processor maintains an establishment. In the alternative, the claim may instead be brought before the courts of the Member State where the data subject has his or her habitual residence, save where the controller or processor is a public authority of a Member State acting in the exercise of its public powers. This seems to lay down a complete, self-contained scheme identifying which courts have jurisdiction over GDPR claims, and Recital (147) goes even further. Recital (147) provides—‘ Where this Regulation lays down specific rules on jurisdiction, particularly concerning proceedings that seek a judicial remedy, including...

Green v SCL Group [2019] EWHC 954 ( Ch), [2019] All ER ( D) 114 ( Apr) What are the practical implications of this case? Norris J’s decision in Green v SCL Group (widely known as Cambridge Analytica) offers insolvency practitioners clearer guidance on the evidence they must present to the court and on responding to creditors’ enquiries, and also illuminates the court’s stance on applications seeking to move an administration into liquidation. What was the background? The dispute concerned campaigner Professor David Carroll’s objection to the administrators of the UK Cambridge Analytica entities being appointed as liquidators, even though the vast majority of creditors supported them. The office-holders had entered office through an administration application. Professor Carroll maintained that: the joint administrators breached their duty of candour by failing to identify his claim and report it to the court they further breached that duty by not...

Rochester v Ingham House Ltd [2019] EWHC 847 ( QB) Background Ingham House, run by the defendant company, is a residential care facility delivering support to older adults. Mrs Rochester (the claimant) was hired as a team leader at Ingham House and completed four shifts. According to the claimant, she voiced worries about the state of affairs at Ingham House and, during a discussion with the Deputy Manager, left her post with immediate effect. The defendant contends that the Deputy Manager challenged the claimant’s role in handing out medicines to residents and that, although she appeared to resign in that exchange, she was actually dismissed. The claimant reported matters concerning Ingham House to the CQC and informed the defendant of doing so. She asserts the defendant then emailed the CQC and referred her to the Disclosure and Barring Service ( DBS) in a bid to...

Hewson v Times Newspapers Ltd and another [2019] EWHC 650 ( QB) Practical implications The ruling is noteworthy as the court spelt out the correct approach to the repetition rule, describing the matter as a textbook instance of how the rule should operate. That rule stops a report that relays an allegation from being held to bear a milder defamatory meaning than the original allegation would carry. Here, the pieces both included and recounted accusations made by others. The court emphasised that publications that simply repeat others’ claims will generally amount to a fresh publication of those claims. As to meaning, the consequence was that the re-publisher was treated as having ‘adopted’ the allegations, without any need for active or express adoption. On that footing, the court held the articles conveyed allegations of guilt. The court also unusually resolved the question of meaning without an oral...

Background These libel proceedings arose after five posts on the website antisemitism.uk about the claimant, a political activist. The first piece, titled ‘ Tony Greenstein’s attempt to shut down Campaign Against Antisemitism showcases the similarities between far-left and far-right’, described the claimant as a ‘notorious antisemite’. The remaining four articles were comparable in tone and examined, among other issues, alleged antisemitism within the Labour Party and the ongoing public dispute between the claimant and the defendant. The parties disagreed over the meanings to be drawn from the words. The claimant maintained that the articles advanced allegations of fact: namely, that he was a notorious antisemite, a racist hostile to all Jews because they are Jewish. He also contended that the first article carried the meaning that he was, more generally, a dishonest fraudster with a background of criminal drug abuse, who was making...

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...

Koutsogiannis v Randon House Group Ltd Carruthers v News Group Newspapers Ltd [2019] EWHC 48 ( QB) What was the background? This defamation action arose from the 2017 publication of ‘ The Spider Network’ by Random House Group Ltd (the defendant). The book’s cover proclaimed it to be ‘ The Wild Story of a Maths Genius, A Gang of Backstabbing Bankers, and One of the Greatest Scams in Financial History.’ The claimant had served as UBS Investment Bank’s Global Head of Cross Currency Basis Swap Trading from 1999 to 2012. He was subsequently dismissed and, owing to his alleged role in fixing Libor rates, the FCA barred him from carrying out any influential position within the British financial industry. On appeal, the Regulatory Decisions Committee overturned that sanction, determining that he ‘did not behave dishonestly or without integrity.’ The work recounts the Libor scandal, with a...

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...

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...

What are the practical implications of this case? This judgment grappled with a bold attempt by the defendant in a libel claim to recast the Lucas- Box meanings set out in its defence, notwithstanding that the court had already settled the issue of meaning earlier in the proceedings. In essence, it addressed whether a party could revisit and amend its Lucas- Box meanings after a prior judicial determination of meaning had been made. What was the background? The claimant, Irina Bokova, who at the relevant time was Director- General of UNESCO, commenced a libel action arising from articles published on the Mail Online and in the Daily Mail. The defendant, Associated Newspapers Limited, put forward a defence of truth under section 2 of the Defamation Act 2013 ( DA 2013). The claimant sought a ruling on the articles’ meaning and orders striking out the truth defence...

R v Sarker [2018] EWCA Crim 1341, All ER ( D) 61 ( Jun) What is the background to this case? This decision concerns reporting bans imposed during the trial of Sarker, a medic facing a single fraud charge. The allegation was that, when applying for a role with an NHS Trust—later accepted—he dishonestly overstated his experience. That count alone was pursued at Worcester Crown Court; other aspects of his background were kept from the jury. Those matters concerned later inquiries into substandard surgical practice after he joined the Trust. Because such material risked prejudicing the proceedings, it was excluded from the trial. During the hearing, defence counsel applied for an order preventing any press coverage until the jury returned its verdict. The rationale advanced was that publicity about his wider history could reach, and influence, jurors. The judge made the order and...

Does the GDPR apply to unincorporated associations, such as sports clubs, and who is responsible for compliance by an unincorporated association with the GDPR? Who is ‘controller’ or ‘processor’? Yes—the General Data Protection Regulation, Regulation ( EU) 2016/679, applies to unincorporated associations in the same way it applies to companies or partnerships. The GDPR’s definitions of a ‘controller’ and a ‘processor’ encompass both natural persons and legal persons. The challenge for unincorporated associations is that they are not legal persons. They have no separate legal personality; they exist by contract, and neither statute nor case law sets out clear, definitive rules for what their governing provisions must contain. What truly matters under the GDPR is not the category of person or entity undertaking the processing, but the overall activity of collecting and using personal data. The rationale is...

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...