Legal News

Nwabueze v University of Law Ltd and others [2020] EWCA Civ 1526 What are the practical implications of this case? As observed at paragraph [4], apart from equal pay, the Eq A 2010 divides jurisdiction into tightly sealed compartments. Claims about discrimination arising in the employment sphere, including matters involving qualifications bodies, fall under Eq A 2010, Part 5 and are within the exclusive jurisdiction of the Employment Tribunal ( ET). By contrast, discrimination connected with education is governed by Eq A 2010, Part 6 and sits within the exclusive jurisdiction of the County Court. The ruling confirms that students, or those applying for admission, who allege discrimination by universities under the Eq A 2010 must commence proceedings in the County Court, not the ET. Where an organisation counts as a university for the purposes of section 91 of the Eq A 2010, that...

Banco San Juan Internacional, Inc v Petroleos De Venezuela SA [2020] EWHC 2937 ( Comm) What are the practical implications of this case? This ruling underscores the extremely limited reach of the exception commonly called the ‘ Ralli Bros rule’, derived from Ralli Bros v Compania Naviera Sota y Aznar [1920] 2 KB 287, to the general rule that contravention of foreign law does not frustrate nor otherwise excuse performance of an English law contract. With various coronavirus ( COVID-19) restrictions operating globally, the courts may well see more attempts to invoke the exception, since such measures could, at least in theory, render performance of an English law agreement unlawful under a foreign legal system. The principal points to note are: where a party can discharge its contractual duties by an alternative means that is not the one said to be unlawful, it cannot rely on the...

Associates Ltd v Gibbeson [2020] EWCA Civ 1460 What are the practical implications of this case? This decision will interest appeal practitioners, notably those advising where permission to appeal has been refused on the papers, the application has been branded totally without merit, and an order has also been made preventing the applicant from seeking an oral reconsideration under CPR 52.4(3). It concerns scenarios where the court, on paper, concludes an application is wholly without merit and, simultaneously, bars any oral renewal of the permission application. The Court of Appeal reaffirmed two settled points: no appeal lies from a High Court decision to grant or refuse permission to appeal ( AJA 1999, s 54(4)); and the Court of Appeal has no jurisdiction to entertain an appeal from a high court judge’s certification that an application is totally without...

Maeda Kensetsu Kogyo Kabushiki Kaisha (aka Maeda Corporation) v Bauer Hong Kong Ltd [2020] HKA 830 What are the practical implications of this case? The Hong Kong Court of First Instance’s ruling drew attention because the contested notification requirement mirrored provisions in the FIDIC 2017 suite. In particular, clause 20.2.4 of the Red, Yellow and Silver Books obliges a party, when submitting a fully detailed claim, to include a statement identifying the contractual or other legal foundation for that claim. Supplying that statement is a condition precedent to any entitlement. At first instance, the court determined that once a party has specified the contractual basis it relies upon, it is not permitted to later advance a different basis. This approach is of persuasive value in England and Wales. See News Analysis: Hong Kong—effect of notification of contractual basis of claim ( Maeda v Bauer). The Hong Kong...

Medsted Associates Ltd v Canaccord Genuity Wealth ( International) Ltd [2020] EWHC 2952 ( Comm) What are the practical implications of this case? This judgment offers a clear examination of the contractual measure of damages affirmed in One Step ( Support) Ltd v Morris- Garner and another [2018] UKSC 20. It is especially pertinent where a defendant advances a complex or persuasive counterfactual to justify a reduction in damages. The court held that to construct the proper counterfactual one must first pinpoint the relevant contractual obligation and the relevant breach. Speculative possibilities that sit beyond those core issues do not belong within the ‘had the contract been performed’ counterfactual. They are entirely outside the proper scope of the inquiry here. In this dispute, concerning breach of an introducing agreement, the pertinent contractual obligation was the payment of the introduction fee. The pertinent breach was the...

B v Erinvale PTC Ltd and others [2020] JRC213 (registration required) What are the practical implications of this case? The court restated the firm principle that it would be an excessive use of its powers to compel a trustee to act (in this instance, to make the wife a beneficiary in her own right) or to exercise any power to add the wife itself. As the trustee had not yielded its discretion to the court, that was not the court’s function, whether under Article 51 of the Trusts ( Jersey) Law 1984 as amended, or otherwise. Instead, the court indicated it had “no doubt” that, on reflection, the trustee would now move to add the wife. The ruling also serves as a prompt to trust practitioners, when drafting, to consider carefully how a person’s position as a beneficiary might shift over time with changes in their...

TOTSA Total Oil Trading SA v New Stream Trading AG [2020] EWHC 855 ( Comm) (27 March 2020) What are the practical implications of this case? In the midst of the current pandemic, force majeure clauses in agreements are likely to be uppermost in parties’ thoughts. This decision confirms that, even where force majeure might be engaged, unequivocal language in a collateral provision requiring a party to make payment (here, repayment) on a delay occurring for ‘whatever reason’ will operate unless the force majeure wording expressly changes that outcome. In this case there was a cross-reference between the two key clauses, which appears to have prompted the disagreement on construction. Contract drafters should therefore aim to make any cross-reference expressly clear as to the effect it is intended to have. If a cross-reference does not in fact elucidate or mirror the parties’ intention...

Germany, presiding over gatherings of the EU’s member-state governments in the latter half of the year, plans to table an updated draft for the 11 November 2020 session, potentially opening the door to a common position among EU capitals. Should ministers settle on a deal, negotiations with the European Parliament may commence; the Parliament endorsed its own take on the e Privacy Regulation back in October 2017. The Commission first put the proposal forward in January 2017. Berlin has elevated the contentious e Privacy Regulation to a headline file for its six‑month stint at the helm of the EU Council, seeking a mandate to open talks with the European Parliament. Progress has been blocked by disputes about aligning the plan with the EU’s flagship General Data Protection Regulation, Regulation ( EU) 2016/679; about the treatment of ‘cookie walls’ (pop‑up prompts that deny entry to sites until a...

Rayner v Seabourne- Hawkins [2020] EWHC 2895 ( QB) What are the practical implications of this case? The case revolves around alleged spoken statements, giving rise to a slander action. As with any slander claim, Mr Rayner had to establish the exact words said by the defendant, Mr Seabourne- Hawkins, and identify the individuals who heard them. What will matter most to practitioners — and what the Judge took care to emphasise — was the claimant’s omission to obtain relevant, contemporaneous witness evidence promptly after the incident. This is particularly significant in slander because, unlike libel, there is often no record of the words said. In defamation claims, the point at which witness statements are prepared can be more than a year after publication, during which period the recollections of potential witnesses may fade. It is therefore crucial for claimants to seek to obtain......

What is the relevance of UK data protection law to the creation or sharing of deepfakes? Is a deepfake likely to be personal data? Neither the General Data Protection Regulation, Regulation ( EU) 2016/976 ( EU GDPR), nor the Data Protection Act 2018 ( DPA 2018) expressly addresses deepfakes. The real question is whether deepfakes fall within the scope of data protection rules, and in particular the DPA 2018. Personal data covers any information linked to an identified or identifiable living individual, which can include a person’s image or voice. In this setting, creating deepfakes involves training an artificial intelligence ( AI) system on the target individual’s facial features and vocal characteristics, enabling those elements to be placed into material featuring another person; doing so necessarily relies on a person’s audio and/or video recordings. Consequently, even if someone were to argue that the...

Adare Finance DAC v Yellowstone Capital Management SA and another [2020] EWHC 2760 ( Comm) What are the practical implications of this case? This ruling serves as a convenient and accessible single reference point for practitioners on how to approach applications for summary judgment or strike out in general practice, and on the scope and interpretation of the equitable doctrines of unconscionable bargains, economic duress and penal provisions in particular detail. After a thorough and careful wide-ranging survey of the authorities, Peter Mac Donald Eggers QC, sitting as a Deputy Judge of the High Court, firmly concluded that the defendants could not sidestep their freely negotiated contractual obligations by advancing nebulous allegations of victimisation by Adare. The judgment further emphasises that a litigant who is an experienced businessman with substantial means and access to top-quality legal advice cannot be treated as...

Applications submitted before this date will be determined under the Rules in effect on 30 November 2020. See: LNB News 22/10/2020 80. The Migration Advisory Committee ( MAC) has been asked to examine the Intra- Company Transfer route and to report on issues including salary and skill thresholds, whether separate arrangements should exist for high earners, and points of divergence from the Skilled Worker route. The MAC aims to provide its findings by the end of October 2021. Any adjustments to the route are expected to follow in 2022. See: LNB News 07/10/2020 76. Appendix Intra- Company Routes The Tier 2 ( Intra- Company Transfer) ( ICT) route will be retitled as the Intra- Company routes, as flagged in the Home Office’s July 2020 further details paper. The two strands are the core Intra- Company Transfer and the Intra- Company Graduate...

Bath Rugby Ltd v Greenwood and others [2020] EWHC 2662 ( Ch); Bath Rugby Ltd v Greenwood and others [2020] EWHC 2856 ( Ch) What are the practical implications of this case? The ruling offers a helpful survey and reaffirmation of what is needed for the annexation of the benefit of restrictive covenants made before the Law of Property Act 1925 took effect. While covenants of such vintage now seldom surface in property disputes—the one here dating back almost a hundred years—the judgment is of broader relevance for its treatment of annexation and its discussion of Crest Nicholson Residential ( South) Ltd v Mc Allister [2004] EWCA Civ 410, a post‑1925 covenant case. In particular, it considers Chadwick LJ’s remark that, for annexation to bite, the land intended to take the benefit must be ‘easily ascertainable’. Bath Rugby further exemplifies how the court...

BDW Trading Ltd v Lantoom Ltd [2020] EWHC 2744 ( TCC) What are the practical implications of this case? This case is notable because the hearing occurred the day after CPR 3.15A took effect. The claimant argued that the previous rule ought to govern matters since the significant developments relied upon, together with the correspondence and the application, all pre-dated the amendment. The judge observed that, without a relevant transitional provision, that may not be correct; however, neither side suggested that the altered wording made any difference on the facts. It proved highly advantageous that the claimant had expressly set out its initial expectation regarding the volume of documents it anticipated receiving. Regional Costs Judge Richard Lumb has publicly stressed how critical this can be. By setting the stated assumption against what actually materialises, showing a significant development becomes far more...

Fantini (as executor of the estate of Iris Mary Fantini (deceased)) v Scrutton and others [2020] EWHC 1552 ( Ch) What are the practical implications of this case? This decision narrows the ability of co-owners holding as joint tenants (and of the personal representatives or will beneficiaries of such persons) to treat efforts to serve a compliant notice of severance, and to lodge a matching restriction, as having themselves brought about a severance. It underscores, for advisers, the critical need to ensure proper service of any notice of severance—especially where clients are nearing the end of life or following the breakdown of a relationship—since it is now evident that mere attempts to do so, or to take related steps, may not in themselves achieve severance. The judgment also illuminates the boundaries of the principle that the court will favour a tenancy in...

Travelport Ltd and others v Wex Inc; Olding and others v Wex Inc [2020] EWHC 2670 ( Comm) What are the practical implications of this case? In this matter, the intricate MAE provision contained numerous carve-outs stating that specified circumstances were not to count as a material adverse effect; however, those carve-outs were themselves qualified by a further proviso allowing certain matters to be considered where they had a disproportionate impact on either of the two corporate groups when set against appropriate industry comparators, each group being viewed in the round collectively. The degree of abstraction (e.g. no express definition of what amounted to 'material') left significant room for contention over the contract’s interpretation. There was little English authority addressing the proper approach to construing provisions of this kind. Its layered structure—exceptions upon exceptions with a...

On Friday 16 October 2020, the Information Commissioner’s Office ( ICO) confirmed that the airline had not implemented adequate security controls, leading to a data breach impacting more than 400,000 customers. In a 114-page penalty notice, the ICO determined that BA infringed the integrity and confidentiality requirements of the General Data Protection Regulation, Regulation ( EU) 2016/679 ( GDPR), by failing to ensure the proper protection of personal data. ‘ The attack exposed numerous shortcomings across BA’s security arrangements and network,’ the regulator noted (see here). Trinidad and Tobago The decision, for the first time, sets out details of the incident and emphasises the risks in how organisations manage remote access to their servers, particularly during the coronavirus ( COVID-19) pandemic. The breach began on 22 June 2018, when an unknown attacker gained entry to BA’s network using the credentials of a Swissport...

Naibu Global International Company plc and another v Daniel Stewart & Company plc and another [2020] EWHC 2719 ( Ch) What are the practical implications of this case? This decision presents several wide-ranging, practically significant points. In substance, it stands as another concrete illustration of a first‑instance court adopting the Supreme Court’s approach in Sevilleja v Marex Financial Ltd [2020] UKSC 31, and consequently striking out a claim characterised as reflective loss. That strike‑out occurred at an early juncture notwithstanding the claim’s substantial value. It therefore underlines how the Marex principle can be decisive at the threshold, irrespective of quantum, when a claim properly falls within the category of reflective loss as understood by the Supreme Court in that judgment itself. Different strategies will therefore be required when formulating losses liable to be treated as ‘reflective’...

Waterside Escapes Ltd v HMRC [2020] What are the practical implications of this case? The judgment considers two strands of the SDLT code: the 15% charge in FA 2003, Sch 4A and the partnership rules in FA 2003, Sch 15, alongside a detailed review of the connected persons provisions in the CTA 2010. It confirms that, for FA 2003, Sch 4A, para 5(2), what matters is the company’s subjective intention about whether a non-qualifying individual may occupy a dwelling, and that intention can be shown by a clause in a shareholders’ agreement. The case reminds tax practitioners that the wording of shareholders’ agreements and other governing documents can be pivotal in determining whether relief applies (here, relief from the 15% SDLT rate was unavailable because of a permissive clause in the shareholders’ agreement). It further confirms that the concept of occupation for the 15% relief is...

Privacy International v Secretary of State for Foreign and Commonwealth Affairs and others Case C‑623/17 What are the practical implications of this case? From a legal standpoint, the ruling requires the UK to re‑evaluate how and when it acquires bulk communications data from internet and telecoms providers, and to define firmer constraints on its monitoring powers. Existing approaches that involve transferring such data on a blanket and non‑targeted basis are at odds with EU law. Careful consideration must be given to the thresholds that must be satisfied before issuing notices to transfer data under the Telecommunications Act 1984 ( TA 1984), together with the material and procedural safeguards that will regulate the onward transfer and use of that information. Notably, there will probably need to be an explicit nexus between the necessity for the particular datasets sought and the protection of National...