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Archive for November, 2015

Friday 20 November 2015

MH Update Winter 2015

Welcome

Thank you for taking a few minutes to look at this edition of the MH Update.

2015 is the 30th anniversary of the founding of Marriott Harrison, so it is appropriate first of all to say a big thank you to those of you who have supported us over those years. We have come a long way from the firm’s origins in Bedford Row and the genteel Georgian surroundings of 11/12 Great James Street. The strong personal ethos of the firm remains the same but at the same time we continue to grow and I am delighted to announce a number of new arrivals at the firm.

Tamar Halevy joined earlier in the year from Lewis Silkin as a partner in the litigation department. Tamar now runs that group in place of Peter Curnock who has now retired. Peter has been a tower of strength for the firm for over 25 years. We will miss his advice and his good humour and we wish him the very best.

Brett Israel joined the partnership from Wragge Lawrence Graham during the summer. Brett’s practice is in debt finance and restructuring so this will help to extend the capability of the corporate group in those areas.

More recently Kit Stenning, Andrew Williamson, Nils Reid, Calum Robinson and Deirdre O’Neill have joined from McClure Naismith. They are all part of the corporate group working on M&A, corporate finance and IPOs. Jim Mackie also joined from McClure Naismith as a consultant in the litigation department.

We wish them all welcome and I hope that you will have the chance to meet them before long.

I cannot close without mentioning that this is the first publication of the MH Update since Duncan Innes died. He was a partner in the firm for over 20 years and is much missed. A large contingent from the firm and many of his other friends, which included many whose friendship stems from his work, attended his funeral.

I hope that you find some interesting reading in the notes below. If you have any questions about them please do contact the authors or if there is anything else you would like to discuss please get in touch with me or with your usual contact person in the firm.

Friday 20 November 2015

MH Corporate

Indemnities and interpretation: a case of cats and dogs

The recent Court of Appeal decision Wood v Sureterm Direct Ltd & Capita Insurance Services Ltd [2015] EWCA Civ 839 considered how to interpret an indemnity clause in a sale and purchase agreement, overturning the High Court decision. The Court examined its role in interpreting a contract between parties where the language was capable of having more than one meaning, finding that it is not for the courts to improve a party’s bad bargain where it would undermine the importance of the natural language used.

The Good, the Bad and the Faithful

The case of Portsmouth City Council v Ensign Highways Ltd [2015] EWHC 1969 (TCC) considered whether a duty to act in good faith could be implied into the Council’s dealings with its service provider (Ensign).

Illegality considered – the case of Jetivia SA and another v Bilta (UK) Ltd

In the recent case Jetivia SA and another v Bilta (UK) Ltd [2015] UKSC 23 (“Jetivia v Bilta”) the Supreme Court considered the application of the illegality defence.

Through its liquidators, an insolvent English company, Bilta (UK) Limited (“Bilta”), brought claims against its directors for unlawful means conspiracy involving them breaching their fiduciary duties and against a Swiss company, Jetivia SA (“Jetivia”) and its sole French director for dishonestly assisting them. Jetivia and its directors applied to strike out Bilta’s claim on the basis of the “illegality defence”, the principle that the courts will not assist a claimant whose claim is only possible due to the claimant’s own illegal action.

Corporate Update: Recovery of avoided loss and collateral benefits

The case of Swynson Limited v Lowick Rose LLP [2015] EWCA Civ 629 on appeal to the Court of Appeal concerned an amount of damages recoverable by a lender from a negligent firm of accountants which failed to perform a proper exercise of due diligence on the borrower to whom monies were lent on reliance on that negligent advice. The loan was repaid by using money lent to the borrower by the owner of the lending company. At first instance the High Court held that repayment was a collateral matter which did not go to reduce the damages recoverable by the lender from the negligent accountants. The appeal concerned, amongst other matters, whether damages due for that negligence could be reduced by “avoided loss”. The avoided loss came about through the repayment to the borrower of the two initial loans through the issue of a third refinancing loan from the borrower’s owner undertaken principally for tax reasons.

Friday 20 November 2015

MH Dispute Resolution

Take Notice

The recently reported decision of the High Court in IPSOS S.A. v Dentsu Aegis Network Limited (formerly Aegis Group plc) [2015] EWHC 1171 (Comm) highlights the importance of ensuring that any provisions in a share sale and purchase agreement regarding giving notice of claims are followed precisely.

Under the terms of a sale and purchase agreement completed on 12 October 2011 (“the SPA”), Ipsos S.A. (“Ipsos”) purchased shares in various companies forming part of the same world-wide group from Dentsu Aegis Network Limited (“Aegis”).

Beyond the Limit?

Where two businesses contract with each other on the standard terms of business of one of them, any exclusions or limitations of liability contained in those standard terms must be “reasonable” in order to be effective, pursuant to the Unfair Contract Terms Act 1977 (“UCTA”).

Exclusions/limitations commonly found in standard term business-to-business contracts include terms which exclude liability for any “indirect or consequential loss” and/or which limit liability to the contract price.

Friday 20 November 2015

MH Employment

National Living Wage

On 8 July 2015, the National Living Wage (“NLW”) was introduced by George Osborne in the first Conservative Budget of this parliament. The NLW, due to come into force in April 2016, will act as a ‘top up’ wage for those aged 25 and over. It has been introduced by the government with the intention of providing a higher wage for ‘more experienced workers’ and raising the UK standards of pay to the levels set by other advanced economies. The ‘top up’ will result in an increase of the total NLW to £7.20. This is set to increase to approximately £9 an hour by 2020 and according to the Office of Budget Responsibility (“OBR”) is likely to result in a pay rise for millions of people. However the OBR also warns that the introduction of the NLW may cost up to 60,000 jobs.

Friday 20 November 2015

MH Media, Technology and IP

Defamation Act 2013 and ‘serious harm’ – has the bar been raised too high?

The High Court’s recent decision in Lachaux v Independent Print Ltd (and Ors) on the construction of the “serious harm” requirement in section 1(1) of the Defamation Act 2013 (“DA 2013”) provides welcome clarification on the new thresholds introduced by DA 2013 for defamation claims.

In Lachaux, the court had to decide, as a preliminary issue, whether certain articles published in the defendant’s newspapers had caused, or were likely to cause, serious harm to the applicant’s reputation within the meaning of section 1(1) of the DA 2013. The newspaper articles contained allegations made by the applicant’s ex wife about the applicant, which included claims of domestic abuse and kidnapping.

Consumer Rights Act 2015 – what you need to know

The main provisions of the Consumer Rights Act 2015 (“CRA”) came into force on 1 October 2015. The CRA consolidates and clarifies existing consumer rights legislation into one comprehensive source and makes certain changes that affect all businesses selling to consumers. The key aspects are:

Trade Marks: Community (EU) or National – Time for a review

Benefits of the Community trade mark (“CTM”) system

Since 1996, the CTM registration system has been widely used by businesses all around the world as a way of obtaining protection for their brands in the EU, and for good reason. For those that have or plan to have a presence in some or all of the Member States, the system offers excellent value for money. For the price of two or three national registrations, a brand owner can, via the CTM system, obtain protection in all the Member States of the EU (currently twenty-eight).

The Filmmakers’ Legal Guide

There is an infinite number of legal matters on which filmmakers seek advice. Nevertheless, certain questions frequently arise: is permission required to use material from a book? Does a contract have to be in writing? May classical music be used in the background of a scene? Does an interviewee need to sign a release? How do I protect my share of net profits if the film is successful? Marriott Harrison’s Head of Media, Tony Morris, has written the Filmmaker’s Legal Guide which addresses the practical legal needs of those producing, financing and exploiting all manner of audio-visual productions – features, documentaries, shorts, television programmes and other audio-visual content.

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