A recent decision gave Court of Appeal endorsement to a raft of similar first-instance decisions regarding banks' contractual duties to customers in respect of regulator-mandated reviews. The decision provides helpful comfort for banks when agreeing remedial action with the Financial Conduct Authority that they ought not to be exposing themselves to private actions from customers in respect of their review, provided that third-party rights are excluded.
The High Court recently held that a retail store owner was jointly liable with a product manufacturer for an accident that had occurred at his store. The existence of joint and several liability has long been criticised for creating disproportionate liability because it arguably places insured companies at greater risk. Suggested reforms have included the introduction of proportionate liability and a statutory capping regime on insurance claims.
In a recent case concerning the enumeration of units for the limitation of containerised cargo, the Court of Appeals was asked to determine whether the Hague-Visby Rules are compulsorily applicable if a bill of lading is not issued, what constitutes a 'unit' under the rules and what enumeration of cargo is required under Article IV.5(c) of the rules. The claim arose following damage to a cargo of frozen bluefin tuna packed into three refrigerated containers, which had occurred during carriage from Cartagena to Japan.
The Parental Bereavement (Pay and Leave) Bill recently received royal assent to become the Parental Bereavement (Leave and Pay) Act 2018. The act entitles employed parents who have lost a child to take statutory paid leave to allow them time to grieve. The new rights are expected to come into force in 2020.
The Court of Appeal recently held that a director who had made continuing fraudulent misrepresentations was liable for damages calculated at the point of sale and not at the point of entering into the contract. This judgment is a reminder that, in the right case, deceit may be used to pierce the corporate veil. It also highlights the considerations when assessing damages regarding continuing representations, particularly when there is time between the representation being made and the performance of the contract.
Four former Vision Express franchisees were recently successful in their claim against their franchisor, in which they alleged that they had been induced to enter into their franchise agreements on the basis of false information provided by a Vision Express employee. The case highlights the importance of ensuring that a franchisor's employees stay on message during the sales process and information which is provided to prospective franchisees is scrutinised to ensure its accuracy and relevance to the investment.
The High Court recently examined an application by Ukraine to set aside an enforcement award following a disputed arbitration award. The case highlights the importance of ensuring that any agreement being entered into with a state party contains carefully drafted arbitration provisions and appropriately worded waiver of immunity language to ensure that the dispute resolution regime is fit for purpose.
The Employment Appeal Tribunal recently upheld a decision that the dismissal of an employee immediately before a Transfer of Undertakings (Protection of Employment) Regulations transfer was automatically unfair because the principal reason was the transfer. The case emphasises that even where an employer believes that it has a non-transfer-related rationale for the dismissal, caution should be exercised if the dismissal will occur close to the transfer date.
In a case about whether Transfer of Undertakings (Protection of Employment) (TUPE) Regulations applied to the transfer of a public health team commissioning service, the Employment Appeal Tribunal has considered points of appeal in relation to two seldom litigated provisions of TUPE: Regulations 3(5) and 4(1).
In July 2017 the government released proposals to regulate the use of drones in the United Kingdom. Since then, the regulation of drones has been transferred to the European Union and now falls under the EU Basic Regulation. Many of the UK government's proposals for drone operators are included in the EU Basic Regulation, which sets the groundwork for establishing rules that will require operators of drones that weigh 250kg and above to register them and ensure that they are marked for identification.
To render a force majeure clause watertight, time should be taken to consider all of the potential risks that may prevent parties from fulfilling their obligations under the contract and spell these out in the clause. Also, where an event has occurred, parties must be able to demonstrate that the force majeure event was the sole cause of any failure to fulfil their contractual obligations. This was recently upheld by the High Court.
The Employment Appeal Tribunal has confirmed that when considering whether there has been a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations, a tribunal must identify the relevant activity. Further, the analysis must be conducted in the right order and any fragmentation should be considered when determining whether activities carried on by the subsequent service provider are fundamentally the same as those carried on by the outgoing service provider.
It is not always possible for a buyer to meet a seller's valuation, especially where the seller is seeking upfront value for expected rather than actual revenue or profit. In these circumstances, the buyer and seller may attempt to bridge the gap and agree the terms of an earn-out. Under a typical earn-out structure for a private M&A transaction, the buyer will make an initial payment of consideration at completion and one or more deferred contingent payments over a specified period following completion.
It is understandable that directors might be reluctant to seek legal advice – be it due to concern about time or cost or a potential conflict of interest if seeking advice internally. However, as a recent case demonstrates, this is a small price to pay to avoid the time and financial cost of a claim, especially when a company's subsequent precarious financial position shines a light on an officer's behaviour and competence.
The territorial scope of UK income tax for non-UK resident persons is generally limited to certain types of income that have a UK source. To help Her Majesty's Revenue and Customs collect the tax due on the interest received by a non-UK resident lender, the debtor is required to deduct income tax at the basic rate from the interest payments. The Court of Appeal recently confirmed that the multifactorial test is the correct approach for establishing the source of such loan interest.
The Commercial Court recently discharged an injunction restraining the enforcement of a US court order made under Section 1782 of Title 28 of the US Code (Assistance to foreign and international tribunals and to litigants before such tribunals). Section 1782 applications can be a useful weapon in an English litigator's armoury as a means of obtaining evidence under the control of a US-based entity through US-style discovery, including by the use of depositions and documentary evidence.
For the sale of a company using a European-style share purchase agreement governed by English law, the use of a 'locked box' as the seller's preferred pricing mechanism is now more commonplace than the traditionally popular closing accounts. The 'locked box' is an alternative pricing mechanism to closing accounts, under which the parties agree a price payable for the target based on a balance sheet that is drawn up and settled between the parties on an agreed date in advance of signing.
The Supreme Court recently ruled that a bank providing a reference relating to its customer owed a tortious duty of care only to the addressee. The decision reflects the wider judicial trend of restricting the circumstances in which duties of care for negligent misstatement are found to exist on the basis of an assumption of responsibility by the party making the statement.
Driven by private equity sellers seeking a clean break and no post-closing liability for a breach of business warranties or under a tax covenant, and by buyers requiring a source of meaningful financial recourse, warranty and indemnity insurance is now a common feature of most private M&A transactions governed by English law. Cover is available for up to the full amount of consideration under a share purchase agreement if required.
The Court of Appeal recently confirmed that an English jurisdiction clause in the underlying International Swaps and Derivatives Association Master Agreement under which certain swaps were made should be applied to disputes relating to the swap transactions, rather than an Italian jurisdiction clause in a competitor agreement governing the parties' generic relationship.