Disputes and Litigation publications

31 August 2015

Concept - Autumn 2015

Welcome to the Autumn 2015 edition of Concept, the news bulletin from our Intellectual Property team.

24 August 2015

The Insurance Act 2015 - are you ready for the change?

On 12 August 2016 the Insurance Act 2015 comes into force and will make substantial changes to insurance law in England & Wales. This will affect not only how disputes between businesses and their insurers are dealt with by the Courts but also the obligations on a business when purchasing insurance.

21 August 2015

Ignorance is (not) bliss: SMEs fail to appreciate Bribery Act 2010

A recent survey commissioned by the Ministry of Justice and Department for Business, Innovation and Skills shows a concerning lack of awareness and understanding of the Bribery Act 2010 amongst small and medium sized enterprises.

14 August 2015

LIBOR Prison Blues: SFO secures 14 year sentence for trader

A former UBS and Citigroup trader, Tom Hayes, has been sentenced to 14 years in prison after he was found guilty of conspiring to manipulate LIBOR. This is the first conviction in the LIBOR manipulation scandal and is one of the most severe sentences obtained by the SFO to date.

10 August 2015

Contractual interpretation in cupcakes - applying the interpretation rules in Arnold v Britton

The High Court has been quick to apply the Supreme Court’s decision in Arnold v Britton on contractual interpretation in a supply agreement for cupcakes. Honeyrose Bakery Ltd v Lola’s Kitchen Ltd (t/a Lola’s Cupcakes).

10 August 2015

Use it or lose it: to maintain a CTM registration “genuine use” is required beyond just one Member State

In a recent Intellectual Property Enterprise Court decision, the High Court has found two Community Trade Marks (“CTMs”) owned by Sofa Workshop for the words “SOFA WORKSHOP” to be liable to be revoked for non-use and therefore unenforceable in infringement proceedings against Sofaworks. This briefing discusses the findings in greater detail.

05 August 2015

Turning criminal: Supreme Court considers when property becomes "criminal" for purposes of POCA 2002

The Supreme Court recently considered in R v GH [2015] UKSC 24 the law relating to prosecutions for money laundering. We review the arrangement offence under the Proceeds of Crime Act 2002, the Supreme Court’s judgment in R v GH [2015] UKSC 24 and practical reminders for businesses on their money laundering obligations.

20 July 2015

Re-financing debt and the effect of lender claims – avoiding getting bogged down in technicalities

Where a loan has been re-financed by a party related to the original lender the Court of Appeal has confirmed that the original lender was not prevented from seeking recovery actions against negligent advisors. In this briefing we take a look at the case of Swynson Ltd v Lowick Rose LLP.

17 July 2015

Reporting under the Payment Practices Regulation and Modern Slavery Act

The Reports on Payment Practices Regulations 2015 and the Modern Slavery Act 2015 are two very different legislative measures. However, they share important similarities which mean large corporates should be considering their implications closely.

07 July 2015

Allocating and insuring risk - key issues when drafting insurance and liability clauses

Our latest insurance briefing looks at key issues to consider when drafting insurance and liability clauses and highlights a number of recent cases.

06 July 2015

OHIM held to have erred in assessing individual character of umbrella design

Jeremy Dickerson and Jennifer Gibson have co-authored an article in World Trademark Review Daily. This article first appeared on WTR Daily, part of World Trademark Review, in June 2015. For further information, please go to www.worldtrademarkreview.com.

16 June 2015

Sentencing for breaches of Health and Safety by very large organisations

Sentencing guidelines for safety breaches and environmental breaches are changing and are likely to increase substantially for large organisations. Case law is now indicating the practical effect of these changes.

11 June 2015

Conarken reaffirmed: negligent drivers liable to pay for rail network delays

Schedule 8 of a Track Access Contract is “logical, well-researched, carefully constructed, and well supported”. Those are the words of Mr Justice Akenhead in Network Rail v Handy and others meaning drivers (namely insurers) of road vehicles are liable for Network Rail’s TAC Schedule 8 loss if they negligently damage rail track or other installations and cause consequential TOC delays.

08 June 2015

Serious Crime Act 2015 provides protection from civil liability

Section 37 of the Serious Crime Act 2015 which came into force on 1 June 2015 is likely to be welcomed by those operating in the regulated sector. We take a closer look and highlight some practical considerations. 

08 June 2015

European Court says food packaging cannot contain images of food not in the ingredients

The European Court of Justice has said that if food or drink packaging contains images of ingredients that are not in the food or drink product itself this will likely “mislead” consumers and thus fall foul of EU law.

03 June 2015

Public Consultation does not necessarily need to set out alternative options – Moseley revisited

We take a look at the case of R (Angharad Morris and Donna Thomas) v Rhondda Cynon Taf County Borough Council which considers the scope of Moseley in detail in respect of the duty to give information on alternative options in consultations.

01 June 2015

Kidnap and Ransom Policies

Recent changes in legislation have put beyond doubt that businesses will be very unlikely to be able to claim indemnity under a kidnap and ransom policy where there is possible terrorist involvement.

27 May 2015

General Court dismisses appeal to register SKYPE as a community trade mark

The General Court of the European Union has handed down its judgment in Skype’s appeal in relation to the registration of SKYPE as a community trade mark. 

22 May 2015

Challenging Accelerated Payment Notices

The High Court has refused to order injunctions preventing HMRC from issuing accelerated payment notices or enforcing existing APNs.

22 May 2015

Over privileged and under investigation: SFO challenges use of privilege

The SFO has expressed its dissatisfaction with businesses that use legal privilege as a defence against disclosing documentation while under investigation. It says that overly liberal use of the “privilege exception” is obstructing its investigations. The SFO has promised to challenge in the Courts such use of the privilege exception.

20 May 2015

When can a company sue its directors for their illegal acts?

The Supreme Court has confirmed in Jetivia v Bilta that where a company brings a claim against its directors for losses caused by their wrongdoing, the directors cannot escape the claim by arguing that their actions are attributed to the company itself. We discuss the Supreme Courts judgment and the use of the s.213 of the Insolvency Act in further detail.

12 May 2015

Financial Services Series - Issue 18

Recent months have seen a number of judicial reviews brought against the Financial Ombudsman Service (“FOS”). We considered several of these in FSS #11 and FSS #13. The outcome of these claims is helping to clarify the situations in which Financial Services firms will be able to challenge the way an ombudsman has reached a decision. This briefing considers the recent case of R (Chancery (UK) LLP) v FOS and the ramifications of the Administrative Court's rejection.

11 May 2015

The importance of ensuring that contractual employee benefits reflect changes to employees’ roles

We look at a recent case which has highlighted the risk of losing insurance cover when a policy is not updated following business changes.

06 May 2015

Penalty clauses – a move towards a flexible approach

This briefing sets out some of the background to the development of the law on penalties.

29 April 2015

Court of Appeal decision in relation to ASSOS and ASOS trade marks

The Court of Appeal has handed down its judgment in relation to the appeals brought by the owners of the ASSOS and ASOS trade marks against the first instance decision of Rose J.

23 April 2015

Gambling, money laundering and reasonable suspicion: a bank’s right to freeze customer accounts

The High Court has ruled in Iraj Parvizi v Barclays Bank Plc that a bank’s decision to freeze a customer’s bank account where there was a genuine suspicion of money laundering did not constitute a breach of contract.

22 April 2015

Warranty & Indemnity insurance: a useful tool in real estate transactions

Recent years have seen an increase in the use of Warranty & Indemnity (W&I) insurance as a 'deal tool' for the disposal of real estate assets, with a growing number of real estate funds using W&I insurance on every deal. This note explains the mechanics and role of W&I insurance, its possible benefits, the likely costs involved and issues to bear in mind when purchasing it.

07 April 2015

Financial Services Series - Issue 17

Many firms will need to apply for consumer credit authorisation under the new FCA regime in the coming months. This bulletin covers the different types of authorisation available, the process of application and what it will mean to be regulated by the FCA.

30 March 2015

Insurance update - Reinstatement

Our March insurance briefing looks at reinstatement and considers the significant decision made in the insured's favour in the case of Western Trading v Great Lakes.

27 February 2015

Financial Services Series – Issue 16

This issue looks at the recent prosecution of Alex Hope by the FCA and the wider implications of this decision for firms. Alex Hope was sentenced to seven years imprisonment for fraud and carrying on a regulated activity without authorisation, contrary to the general prohibition in s19 Financial Services and Markets Act 2000.

24 February 2015

Daily Mirror fails to justify the whole of the defamatory sting of its article about Daniel Simpson and Tulisa Contostavlos

As the Daily Mirror found in Daniel Peter Simpson v MGN Limited, a case decided on the law before the Defamation Act 2013, which abolished the common law defence of justification and inserted a new statutory defence of truth, while it is not necessary to justify the truth of every word, justification of all the potential 'defamatory stings' in the statement is necessary.

18 February 2015

Ownership of copyright in the Innocent Smoothies logo resolved by the High Court

Failure to put in place a clear agreement about ownership of designs produced for Innocent Smoothies has resulted in multiple court proceedings. The case is a lesson for companies seeking a brand identity with design agencies to ensure the legal rights are crystallised fully at the beginning.

10 February 2015

Guarantees and Indemnities: Gordon Ramsay bound by automatically generated signature

Gordon Ramsay has been held liable under a personal indemnity for rent on his London restaurant, York & Albany. Mr Ramsay sought a declaration that he was not bound because he had not signed it. Mr Hutcheson, his father-in-law and agent, had used a ghostwriter machine to sign Mr Ramsay’s name.

10 February 2015

The Application of Trust Law Principles in a Proprietary Estoppel Action

Trustees can often tread a difficult line in their dealings with potential beneficiaries, particularly in circumstances where one beneficiary appears to be in a favoured position. Christie-Miller v Fielden & Oths provides a timely reminder of the possible pitfalls a group of trustees should be on the lookout for.

03 February 2015

Financial Services Series - Issue 15

This issue looks at the thematic review of retail investment advice published by the Financial Conduct Authority (FCA) in December 2014. The review was part of the FCA’s ongoing study of the impact of the Retail Distribution Review on adviser charging and services for retail investments.

29 January 2015

The sale by Topshop of Rihanna t-shirt does amount to passing off

The Court of Appeal has unanimously upheld the High Court decision that the sale by Topshop of a t-shirt displaying an image of Rihanna amounted to passing off.

28 January 2015

Update on progress of the Insurance Bill

Debate on the Insurance Bill is resulting in some emerging changes. The plan is for the Bill to be finalised before the current Parliament ends in March 2015. We take a look at the Bill and the various proposed changes.

23 January 2015

Police charging - clarity at last

The Leeds United v West Yorkshire Police litigation regarding charges levied by the Police for match day deployments finally concluded last year. The Police were ordered to repay over £1 million in charges which were levied unlawfully on Leeds United over the previous six seasons. Following much uncertainty as to the correct basis of charging before the Court of Appeal’s intervention, we now look at the key legal principle and explain what this means for you.

13 January 2015

A-Z of issues in renewable energy projects (I to L)

In this series, our Energy team provides an “A-Z” of key legal and practical issues in renewable energy projects. This third instalment covers “I to L” and sets out a number of issues that our construction, energy, environment and insurance teams regularly encounter.

09 January 2015

Don't rely on equitable set-off

Primarius was supplying Bombardier with train seats for rolling stock and ran into cash flow difficulties. Bombardier agreed to purchase materials from suppliers and provide them as Free Issue Material to Primarius to enable them to continue to manufacture the seats.

06 January 2015

Court of Appeal considers consequences of long-standing concurrent use

Jeremy Dickerson and Georgina Shaw have co-authored an article in World Trademark Review Daily. This article first appeared on WTR Daily, part of World Trademark Review, in November 2014. For further information, please go to www.worldtrademarkreview.com.

29 December 2014

Financial Services Series - Issue 14

In this issue, we consider the Financial Conduct Authority’s recently published report, ‘Annuities sale practices – December 2014’ into selling practices in the annuity market.

22 December 2014

Can insurers recover from your employees after paying out on a corporate policy?

Often businesses will regard an insurance policy as an alternative to having to seek recovery from a third party that caused the loss. However, having insurance does not enable businesses to cease involvement in available recovery actions. We look at Rathbone Brothers Plc & Anor v Novae Corporate Underwriting Ltd (2014).

19 December 2014

Guilty until proven innocent: a new offence of failing to prevent economic crime

The Government is currently considering plans for a new corporate offence of failing to prevent economic crime. This move is perhaps an inevitable response to the series of scandals that have rocked the financial sector in recent years. However, the proposition amounts to a very significant extension of the criminal law into the corporate sphere.

18 December 2014

Real Estate Disputes Case Review 2014

Our review of the most significant real estate disputes cases of the last 12 months. 

18 December 2014

Which party should bring a claim in relation to securitised loans

For the first time, the Court has given guidance on which party is the proper claimant in a claim arising out of a complex securitised loan transaction. 

17 December 2014

How far must transport providers go to ensure access to wheelchair users on buses?

The Court of Appeal has provided much needed legal and practical clarity on the use of the wheelchair space on buses. We take a look at the key issues and one of the conflicting judgments made prior to the Court of Appeal judgment.

02 December 2014

Are sentences for Corporate Manslaughter and Health and Safety offences set to increase?

The Sentencing Council’s consultation on ‘Health and safety offences, corporate manslaughter and food safety and hygiene offences guidelines’ will seek to address the lack of specific guidance in these sectors currently available to the Courts. 

26 November 2014

Financial Services Series - Issue 13

It can be difficult for Financial Services firms to challenge Financial Ombudsman Service determinations. We look at the outcome of Bluefin’s judicial review application which has now been reported. We also consider another recent case in which a consumer attempted to judicially review the FOS.

25 November 2014

When the buck does not stop with the broker

There have been a number of cases over the past few years clarifying and stressing the duties of a broker to its client. The Eurokey case serves as a timely reminder that the client also has a number of responsibilities to fulfil during the underwriting process if it wants to be confident it has appropriate cover.

17 November 2014

Interflora re-visited: Re-trial ordered in long-running dispute

In the latest chapter in the long-running keyword advertising dispute between Interflora and Marks & Spencer, the Court of Appeal has allowed M&S’s appeal against the Judgment of Arnold J in May 2013.

14 November 2014

Bribes, secret commissions and Monaco hotels

We look at the case of FHR European Ventures LLP and others v Cedar Capital Partners LLC [2014] UKSC 45 in which the Supreme Court has ruled that a bribe or a secret commission received by an agent is held by the agent on trust for his principal. 

13 November 2014

Should I stay or should I go? (Revisited) - further automatic suspension upheld

Further to our briefing, Procurement Challenges - should I stay or should I go?, the English High Court has stayed another contract award perhaps indicating an increased willingness to maintain automatic suspensions under Regulation 47(G) of the Public Contracts Regulations 2006 pending an early/expedited trial.

04 November 2014

High Court opens up blocking injunction remedial avenue for trade mark owners

What are the circumstances in which internet service providers can be made to block access to websites selling counterfeit goods? Arnold J has provided some answers in his judgment in Cartier and Others v BskyB and Others [2014] EWHC 3354 (Ch).

30 October 2014

Financial Services Series – Issue 12

In this edition of Financial Services Series, we look at the latest legal developments around interest rate mis-selling and the recent decision in the Cardiff Mercantile Court (Mark Bailey and M T R Bailey Trading Limited v Barclays Bank plc (2014) EWHC 2882(QB)).

22 October 2014

Solicitors trying to do the best for their clients may get struck off if they mislead the Court

In-house solicitors need and want to do the best for their internal clients. But this can conflict with their duties to the court in a dispute or prosecution.

22 October 2014

Specsavers v Asda: use of Shaded logo is genuine use of Wordless logo

In the final instalment of the long standing litigation between Specsavers and Asda, the Court of Appeal has overturned the revocation of Specsavers’ Wordless logo mark and ruled that the use of its Shaded logo mark amounted to genuine use of its Wordless logo mark.

16 October 2014

The dangers of ‘non-binding’ memoranda of agreement

‘Heads of Terms’ or ‘Memoranda of Agreement’ (“MoA”) are commonly agreed by parties as a precursor to entering into more substantial agreements. We discuss the recent case of Unaoil v Leighton Offshore and the risks presented by a loosely drafted MoA.

09 October 2014

Property litigation caselaw update

Our property litigation caselaw update contains a synopsis of five recent cases impacting upon real estate and lender issues.

03 October 2014

$770m AgustaWestland helicopter deal cancelled by Indian government amidst bribery allegations

India’s Ministry of Defence has sought to “terminate with immediate effect” a $770 million deal with AgustaWestland for the supply of 12 transport helicopters, due to allegations of bribery and corruption during the procurement process.

29 September 2014

Cyber risk - are you covered?

We look at the financial implications of cyber attacks, the insurance policy options available and the issues surrounding penalties for data loss.

29 September 2014

Financial Services Series - Issue 11

We provide a reminder of the Financial Ombudsman Service’s complaints handling procedure, highlighting the rules in relation to timings, costs and the reasoning used to determine claims. We also review a recent significant case and consider the difficulty of challenging a FOS decision.

10 September 2014

Errors on CHAPS payment requests

The Courts have been considering who, if anyone, is liable to a customer when CHAPS transfer details are incorrectly entered. In July 2014, the Court of Appeal handed down its decision concerning accuracy of CHAPS payment requests in Tidal Energy Limited v Bank of Scotland.