Whether or not practical completion had occurred before a ... principles of contractual interpretation were applied ....
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The months key commercial legal stories that could affect your business
August 2017 Corporate & Commercial > Data Security >
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Our monthly round-up of key news and trend stories for in-house lawyers includes links to further recommended reading in Lexis®PSL. Non-subscribers can request a free one-week trial of LexisPSL to view this content.
Corporate & Commercial Persons with significant control regime in force as of 26th June 2017 On the 26th June 2017, the regime for investigating and recording information about people with significant control (PSC) over companies and other entities was extended and enhanced. Reporting entities are now required to update their own registers within 14 days, and to update the information held on the central register at Companies House within a further 14 days. This is a significant change from the previous position where centrally-held PSC information was updated via the annual confirmation statement. In addition, the scope of the regime has been extended to cover unregistered companies, companies listed on prescribed markets such as AIM or the NEX Exchange Growth Market, and eligible Scottish partnerships. Further reading: Beneficial ownership—enhancement of the PSC regime.
Examining overage disputes over sale agreements The High Court held in Minerva (Wandsworth) Ltd v Greenland Ram (London) Ltd [2017] EWHC 1457 (Ch), [2017] All ER (D) 154 (Jun) that the defendant company had wrongly prevented the claimant company from continuing with a construction project, by refusing to enter into the necessary agreement with the local authority to allow the project to proceed. The claimant had been entitled to submit an application for planning permission (when it had done), and the defendant had been in breach of contract in preventing the work from going ahead. Further reading: Examining overage disputes over sale agreements.
Supreme Court assesses damages where innocent party benefits from mitigation The Supreme Court, in allowing the owners’ appeal, ruled on the assessment of damages arising out of the repudiation of a charterparty by charterers of a cruise ship (the vessel). Concerning the quantum of damages to be paid to the owners, the court held that the charterers were not entitled 1
to a credit of €11,251,677 to reflect the difference in the value of the vessel in 2007, when the owners had sold it shortly after the charterers had re-delivered it, and its diminished value in 2009, when it would have been re-delivered if the contract had not been repudiated.
request. The ICO will not allow a data controller to invoke the ‘disproportionate effort’ exception to refuse to supply data, without engaging with the individual to determine what information is actually required.
The court held that the benefit to be brought into account had to have been caused either by the breach of the charterparty or by a successful act of mitigation, and that, in the present case, the difference or loss had not, on the face of it, been caused by the repudiation of the charterparty.
Shared parental leave
Further reading: Supreme Court assesses damages where innocent party benefits from mitigation.
Conflicting definitions of practical completion affecting potential liability for losses The court in GB Building Solutions Limited v SFS Fire Services Limited (t/a Central Fire Protection) [2017] EWHC 1289 (TCC) considered preliminary issues relating to a dispute arising out of an amended JCT Design and Build Sub-contract 2005 containing two, apparently conflicting, definitions of practical completion. Whether or not practical completion had occurred before a flood (a Specified Peril under the contract) caused damage affected the contractor’s ability to pursue a claim against the sub-contractor. The general principles of contractual interpretation were applied to determine that the definition in the schedule of modifications did not apply to the clause in question and practical completion had occurred before the flood. Further reading: Conflicting definitions of practical completion affecting potential liability for losses.
Data Security Subject access requests We have previously reported on cases concerning subject access requests. As a result of these cases, the Information Commissioner’s Office (ICO) has updated its Subject Access Code of Practice. The guidance states that data controllers should try to engage constructively with the individual making the
An employer’s policy to pay female employees maternity pay at full pay, but to pay only the statutory rate of pay to a father wishing to take shared parental leave was found, by the Leeds Employment Tribunal, to amount to direct sex discrimination in Ali v Capita Customer Management, ET Case No: 1800990/2016. Further reading: Direct sex discrimination: employer providing shared parental pay at less favourable rate compared to maternity pay.
Employment Gig economy and Taylor report The controversy of the gig economy continues to spark debates. In addition to the multiple cases that are working their way through the courts looking at the definitions of employment status, other issues are being raised, including: • the Advocate General has given an opinion in the case of King v The Sash Window Workshop and Dollar6 stating that employer’s that wrongly classify workers as independent contractors (and therefore do not pay holiday pay) will be liable for full back-dated holiday pay claims. Further reading: Workers denied holiday pay may claim for the whole of their employment • the Taylor report has made some significant change proposals for the gig economy including changing the name and definition of a ‘worker’, creating a new national minimum wage calculation and setting a higher minimum wage for zero-hour workers. Whether the report makes its way into legislation remains to be seen. Further reading: Taylor Review: Employment law proposals including ‘dependent contractors’
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Intellectual Property Trade mark infringement and passing off in Amazon listing case In JadeBay Limited v Clarke-Coles Limited [2017] EWHC 1400 (IPEC), the Intellectual Property Enterprise Court ruled that the use by the defendant of the claimants’ Amazon listings for the sale of its own unrelated products constitutes trade mark infringement and passing off, in a case which clarifies the status of the use of signs as a descriptor in Amazon listings. The first claimant was the registered proprietor of a UK device mark for DESIGN ELEMENTS and the second claimant was its licensee. The claimants’ Amazon listings referred to the flagpoles for sale on those listings as being by ‘DesignElements’. The court held that the use of the listings by the defendant for the sale of its own flagpoles constituted trade mark infringement under section 10(2) of the Trade Marks Act 1994 (TMA 1994), but did not constitute infringement under the TMA 1994, s 10(3) because it was not satisfied that the mark had a reputation among a significant part of the relevant public. It also held that the use constituted passing off. The court was asked to assess quantum as well as liability. It awarded the claimants £38,000 to compensate them for lost profit on each product sale made by the defendant. It declined to make an award for any damage suffered by the second claimant as a result of having to reduce its price to compete with the defendant, because this head of damage was not satisfactorily made out.
with the repair company’s trading name ‘Technosport’ on shirts, a Twitter account and a van did not constitute trade mark infringement pursuant to Article 9(1)(b) of Regulation (EC) 207/2009 (EUTMR). This was on the basis that the use of the mark did not convey to the average consumer any implication of the repair company being an authorised dealer. It had also held that there had been infringement pursuant to Article 9(1)(c) EUTMR, in respect of the use of a BMW roundel mark. The Court of Appeal held that the issue which the IPEC had to decide was whether there had been ‘informative use’ of the BMW mark (i.e. a use which conveys the message ‘my business provides a service which repairs BMWs and/or uses genuine BMW spare parts’) or ‘misleading use’ of the mark (i.e. a use which conveys the false message ‘my repairing service is commercially connected with BMW’). The IPEC had made an error of principle in requiring BMW to prove that all authorised dealers use the trading style ‘Dealer BMW’, and that whenever the average consumer sees the dealer’s name juxtaposed in any context with the BMW mark, he assumes that it refers to an authorised dealer. Furthermore, the IPEC had been wrong to say that it required evidence of actual consumers to establish BMW’s case, because the court has to make its own assessment, taking into account all relevant circumstances. Accordingly, the Court of Appeal carried out its own analysis of infringement and held that all of the uses complained of were more than informative use and carried the risk that they would be understood as misleading use. In the circumstances, all such uses constituted trade mark infringement pursuant to Article 9(1)(b) EUTMR. Given that this ground of appeal had succeeded, the Court of Appeal did not go on to consider Article 9(1)(c) EUTMR. Further reading: Court of Appeal finds infringement by repair company.
Further reading: Alert: Trade mark infringement and passing off in Amazon listing case.
Court of Appeal finds infringement by repair company In Bayerische Motoren Werke Aktiengesellschaft v Technosport London Ltd [2017] EWCA Civ 779, the Court of Appeal allowed an appeal by BMW against a trade mark infringement decision by the Intellectual Property Enterprise Court (IPEC) in respect of the use of the BMW trade mark by a repair company. The IPEC had held in April 2016 that the use of the BMW trade mark in conjunction
Competition Cartel screening tool The Competition and Markets Authority (CMA) has developed a ‘Screening for Cartels’ tool to help companies screen their tender data for signs of cartel behavior. The tool is free to use and is available via the CMA website. 3
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