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The November 2021 Flying solo session for in-house counsel provided over 100 lawyers with an excellent summary of recent regulatory and commercial news to help them support their organisations moving forwards. As always, the event was facilitated and sponsored by ³ÉÈËÓ°Òô, Radius Law and F-Lex Legal.

of Radius Law took us through key updates in commercial, corporate and consumer law, as well as recent issues in data security and ESG.

He then passed the baton over to (see part 2), who took us through the employment law side of things.

Commercial updates

Exclusion and limitation of liability

Since our May commercial update (see this blog piece), there have been more updates in the field of exclusion and limitation of liability that in-house counsel must consider carefully when drafting and reviewing supply contracts. Iain took us through the case of Acerus Pharmaceuticals Corporation v Recipharm Ltd .

In this case the Court found that an exclusion clause in a pharmaceutical manufacturing agreement did not exclude liability for a failure to perform. The clause initially appeared to be a strong exclusion of liability. However, the court found that it was necessary to consider what a reasonable person with the background knowledge would have understood the parties to mean. For more information see our News Analysis: Construing exclusion clauses in context (Acerus v Recipharm).

Iain also took us through a recent decision of the English courts on the application of the Unfair Contracts Terms Act 1977 (). He contrasted it with the decision discussed in the May update in the Northern Ireland case of B A Kitchen Components Ltd v Jowat (UK) Ltd [2021] NIQB 3 [not reported by ³ÉÈËÓ°Òô].

In Phoenix Interior Design Ltd v Henley Homes plc  the judge held that the claimant had failed to show that an unusual clause, tucked away in the standard terms and conditions, with ‘potentially exorbitant’ consequences was reasonable. For more information on the background and implications of this case see News Analysis: Incorporation of standard terms, UCTA, contractual completion (Phoenix v Henley).

Iain then touched upon the discussion of onerous terms in the case of Blu-Sky Solutions Ltd v Be Caring Ltd [2021] EWHC 2619 (Comm). The onerous term related to an obligation to pay a fee of £225 per connection for a care home’s mobile phone service. Ultimately, the judge found that the ‘cunningly concealed’ clause would nonetheless have been void even if it had been incorporated into the contract, as it was a penalty clause. Read more about the court’s decision in News Analysis: Formation of a contract, incorporation of standard terms and conditions, onerous/unusual clauses and penalty clauses (Blu-Sky Solutions Ltd v Be Caring Ltd).

Offer and acceptance

Iain followed up with two recent cases concerning offer and acceptance, which seem to imply that courts may be prepared to look past the lack of a clear offer and acceptance mechanism to imply a contract formed by conduct.

See: Premia Marketing Ltd v Regis Mutual Management and Zymurgorium v Hammonds of Knutsford .

In Premia Marketing the judge found that ‘there was a sufficient meeting of minds between the parties to constitute a contract’.

In Zymurgorium, a longstanding supply contract which was not put in writing was found to contain an exclusive supply clause, as this had been the common understanding between the parties. For further information, see News Analysis: Are we exclusive? High Court reviews key contractual principles in the context of ‘casual’ commercial relationships (Zymurgorium Ltd v Hammonds of Knutsford plc).

Although time was limited and the topics were complex, Iain was also able to touch upon three other topical issues:

• Economic duress—Pakistan International Airline Corporation v Times Travel (UK) Ltd . The Supreme Court found that although the negotiations between the travel agency and flight company were 'hard-nosed’, duress was not made out. Helpfully, the judges also set out the essential elements on the doctrine of lawful act economic duress and what constitutes an illegitimate threat or pressure (see: Supreme Court dismisses Times Travel (UK) Ltd’s lawful act economic duress appeal (Pakistan International Airline Corporation v Times Travel (UK) Ltd), and News Analysis: Supreme Court clarifies the law on lawful act economic duress (Pakistan International Airline Corporation v Times Travel (UK) Ltd))
  

• Directors’ duties—Burnell v Trans-Tag Ltd  clarified that the wording in of the Companies Act 2006 imposes a duty in relation to the exploitation of property, information or opportunity the director had simply become aware of while in office. This means that former directors who take up positions in competing businesses therefore need to be cautious as to how they use information and opportunities which they may have become aware of in their previous roles

   

• Vertical block exemption regulation—the Retained Vertical Agreements Block Exemption Regulation currently expires on 31 May 2022, but Iain expects to see a transition period, particularly due to concerns on the death of the high street. The CMA has just published its final recommendations for the UK’s future strategy, which you can read more about in: CMA publishes Retained Vertical Agreements Block Exemption Regulation consultation outcome, .

Consumer law

In a highly publicised High Court case concerning a dispute over payment of £1.7m of online winnings, the court gave useful guidance on the correct approach to be taken to the incorporation and interpretation of exclusion clauses particularly in online consumer contracts. In Green v Petfre (Gibraltar) Ltd (t/a Betfred) , the Court ruled that the exclusion clauses were not sufficiently accurate, nor had they sufficiently been brought to the attention of the customer. For a summary of the case, see News Analysis: Exclusion clauses in online consumer contracts (Green v Betfred).

3 things to note in data protection 

Iain pinpointed a few key updates in the field of data protection:

• The ICO’ s new Data Sharing Code of Practice came into force on 5 October (see: ICO's Data Sharing Code of Practice comes into force, LNB News 07/10/2021 13)
• The High Court struck out the ‘trivial’ claim for, among other things, damages arising out of the admitted misuse of the claimants’ confidential information or for breaches of data protection law in Rolfe and others v Veale Wasbrough Vizards LLP .. The court found that it was ‘frankly inherently implausible…that the minimal breach caused significant distress and worry or even made them ‘feel ill’.’ See News Analysis: No damages for de minimis data misuse (Rolfe v Veale Wasbrough Vizards LLP)
• The reporting of personal data breaches jumped after the GDPR came into force in May 2018. However, since then there has been a gentle decline in the number of reported breaches, with the ICO notified of 9,532 incidents in 2020/2021. Furthermore, complaints to the ICO are decreasing, and the number of cases prosecuted is very low.

Iain concluded with a brief ESG update, heartily recommending anyone in a business which makes any environmental statements to familiarise themselves with the CMA’s newly published .

For an overview of key commercial issues in-house counsel need to know about in video format, take a look at Iain and Sandra’s monthly .

To join the conversation and access all the materials discussed in this session, join the .

We hope you can join us at the next Flying solo session:

The fight against modern slavery 

Wednesday 8th December, 10:00 – 11:00

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