to - LexisNexis Blogs

In-house News Bulletin
In association with
Keeping you abreast of the big commercial
legal stories, that could affect your business.
April 2015
Corporate & Commercial
Court fees increased
From the 9th of March, court fees increased
for money claims exceeding £10,000. The
new fee will be 5% of the value of the claim
capped at a maximum fee of £10,000. This
change represents a significant uplift in the
fees to be charged ranging from 64% to
481% uplift.
Battle of the forms
In the recent case of Transformers &
Rectifiers v Needs, it was decided that
neither party could rely on its standard
terms and conditions. Both parties had
been trading for 20 years. The Claimant
had supplied its purchase order with terms
and conditions on the reverse, although
there was not any reference to the terms
on the front page. When ordering by fax
or email, it had not included the terms
at all. The Defendant had argued that its
terms and conditions applied as they were
referred to in its acknowledgment of the
order. The Judge added that a particular
problem in this case was that there was not
any consistent process for ordering goods.
This case illustrates the point, that without a
signed contract, there will always be the risk
of uncertainty about the contracting terms.
laim against employee for
breaching covenants
breached his duties to his employer and, in
particular, his confidentiality obligations. It
was found that the employee who had been
in a senior sales position, had downloaded
customer information onto memory
sticks and then used that information to
solicit customers. The Court ordered the
Defendant to pay his former employer
over £290,000 and to deliver up the stolen
information. This is a good news story,
showing that companies that have strong
contractual provisions and processes, can
take effective action to prevent employees
from stealing their confidential information
and know-how.
In the case of Intercity Telecom & another
v Solanki, it was held that the employee had
Data Security
Enforced subject access requests
Safe Harbour
A new provision (s.56) in the Data Protection
Act came into force on the 10th of March.
The effect is to make it a criminal offence to
require someone to use a subject access
request to obtain and produce their criminal
record. This is most likely in the context of
an employer/employee relationship. It is
legitimate for an employer or prospective
employer to seek criminal record information,
but this should be done through the
authorised channels (normally the Disclosure
Barring Service), that save where exceptions
apply only unspent convictions are notified.
There is mounting tension concerning the
data security of Safe Harbour companies.
The Data Protection Act states that
personal data may only be transferred
outside of the EEA if there is an adequate
level of data security. In the U.S. companies
can sign up to the Safe Harbour list; a
voluntary scheme where companies
commit to meeting minimum data security
standards. There are however, a number of
flags being waved to highlight that the Safe
Harbour scheme is not being appropriately
policed and two Data Protection Authorities
in Germany are now filing proceedings
against U.S. Companies for allegedly
not complying with the Safe Harbour
framework. If your business is reliant on
the Safe Harbour regime for transferring
personal data it will make sense to review
your adequacy assessment. Depending on
the nature of the data being transferred, it
may be appropriate to look for alternative
comfort, for example, by use of the E.U.
model contract clauses and by undertaking
your own data security audit.
Advertising & Marketing
ASA prioritisation principles
The Advertising Standards Authority (ASA),
which is the UK’s regulator of advertising
across all media, launched a consultation
at the end of 2014 on the future of its
regulatory activities. The conclusions
of the consultation being that it will now
implement its Prioritisation Principles
to guide its work in the future. The
Prioritisation Principles are:
Harm and detriment – the ASA will
consider what harm and detriment has
occurred or might occur;
Risk – the ASA will balance the risk of
taking action versus inaction;
Impact – the ASA will consider the likely
impact of its intervention;
Resources – the ASA will consider what
resource would be proportionate to
the problem to be tackled.
We also welcome the introduction of the
Prioritisation Principles. In the past, the
ASA has invested considerable resources
into advertisements that have had just
one complaint. The additional guidance
is also helpful for businesses when
creating advertising campaigns, as well as
defending complaints.
Perhaps the most interesting note from
the consultation is that the ASA only had
15 responses. We think this demonstrates
how we can all make a significant
difference to the shape of regulatory
activity, by getting involved directly, or
through trade associations.
Nuisance calls & messages
The Government has announced from 6th
April 2015, it will be easier for the Information
Commissioner Office (ICO) to issue fines
for up to £500,000 against businesses that
make nuisance calls or messages.
Under existing law, the ICO needs to show
that the call/email/text was ‘of a type
likely to cause substantial damage or
distress’. Under the new regime, the ICO
will only need to prove that it was serious
and either deliberate or that the business
knew the breach was likely. The government
also has a stated aim of making board level
executives responsible.
With this change, and news that just a
few days ago the ICO conducted a raid
on a company, believed to be using
automatic dialling technology about debt
management, without consent. Now is
clearly a good time to review any cold calling
or messaging practices that may be utilised
in your business.
Is your business screening against the TPS
(do not call) lists for consumers? Do you
have good internal suppression lists to stop
calling consumers that have asked you to
stop? You may have handed this over to
your marketing agency but you will still be
responsible for their actions, or indeed lack
of. We recently tested the systems of a large
motor retailer, and a hotel chain, by asking
them to stop marketing to us. Despite these
requests the marketing has continued.
Don’t forget the guidance produced by
Which, in conjunction with ICO, that we have
previously reported on. You can find the link
in the written version of this bulletin.
The ASA has ruled that a mailshot from
Amazon, misled consumers about
subscription fees. The mailshot offered
a 30 day free trial to its Prime and video
service. In the small print it stated that
the subscription starts after the free
trial, unless cancelled. The ASA held
that the information was not sufficiently
prominent to make clear the extent of the
commitment. This is an interesting case, as
in our view the practices of Amazon are not
unusual, therefore it provides some helpful
guidance to other businesses that may be
considering similar promotions
2014’s most complained about
The ASA has published the top ten most
complained about ads in 2014. Not all of
the complaints were upheld. It is worth a
read as it gives real insight into the ASA’s
thinking on where it draws the line. Paddy
Power obtained the infamous no.1 spot; for
promoting betting on the outcome of the
Oscar Pistorius trial. The 5,525 complaints
were upheld in this case.
Pensions – IBM case
It’s not unusual for companies to want
to restrict existing generous benefits
and particularly defined benefit pension
schemes. If your business wishes to cut back
on what it offers to staff, it will make sense
to first read about the recent IBM case. The
judgment on remedies demonstrates the
importance of treating the members fairly
and getting the consultation process right,
otherwise it’s likely that the changes will get
unravelled. There is too much detail to go
into in this bulletin, but briefly it has been
confirmed that:
IBM’s attempted exclusion notices
from the defined benefit scheme
are voidable;
the non pensionability agreements
(to prevent future pay increases
being pensionable on a defined benefit
basis) are unenforceable and
IBM breached its duty of trust and
confidence to some members that
took early retirement options and are
likely to face compensation claims.
ACAS code on right to
be accompanied
ACAS has changed its guidance
on the right to be accompanied
at grievance and disciplinary
hearings. This followed a 2013
case (Toal and Anor GB Oils),
which suggested that the
guidance did not reflect the
law. The Employment Rights
Act states that workers have a
right to be accompanied if they
make a reasonable request.
The problem however is that
reasonable request is not
defined. The old ACAS guidance
had stated it would not normally
be reasonable to insist on being
accompanied by a colleague
who worked in a remote office,
if there was a suitable and willing
colleague who was based more
locally. The guidance has now
been updated to allow the worker
a wider choice of companion.
Obesity as a disability
Introducing LexisNexis In-house
We reported last month of
the first case of obesity being
classed as a disability. Now
an employment tribunal in
Northern Ireland has ruled
(Bickerstaff v Butcher
NIIT/92/14) that obese
employees may be entitled
to disability protection. The
landmark case involved a
former employee of Randox
Laboratories who brought
a claim alleging that he had
been discriminated against
because of his obesity. The
claimant said that he had been
harassed by fellow employees
for over four years, and that
the abuse he was suffering
intensified considerably, until
he eventually went on sick
leave due to stress. He left his
job in June 2014.
You’re sitting at your desk. Emails are flying backwards and
forwards from sales, customers, law firms, your finance
director. Where do you start?
Voluntary redress schemes
We have previously reported on the voluntary redress schemes that
are set to be implemented in October under the Consumer Rights
Act. The new power is intended to make it easier for consumers
that have been harmed by companies breaching competition law
to obtain compensation. There is an incentive for companies that
have done the wrongdoing to establish the redress scheme by
gaining a reduction in fines. The Competition and Markets Authority
has now initiated a consultation concerning the guideline for
approving such voluntary redress schemes.
On one hand, you’re firefighting and solving problems. You have
to know about almost everything – from balance sheets to social
media. On the other, you know that the role of the in-house
lawyer is increasingly critical to business risk management.
Further still, you want to add value to the business – and to be
seen doing so – not just for commercial reasons, but your own
development. No one understands this the way we do. Why? We
invest hours every month listening to in-house lawyers. That’s
how we know every lawyer is different, as is every in-house team.
As a result, we’ve developed an unrivalled portfolio of information
and services to help you meet your immediate and longer-term
challenges, so that you get the best result for your business.
Introducing Radius Law
When we provide advice we won’t sit on the fence, nor will we
use legal jargon.
We say what we would do if it was our business.
We’ll get to the point in the quickest way possible.
Our aim is to provide the best service, not the service that
generates the most fees.
Radius Law is inexpensive. It’s a virtual firm so real estate costs
are low and it does not have an expensive partnership model to
sustain. These savings are passed on to you. Furthermore, the
commercial and pragmatic advice ensures we get to the point,
saving hours of fees.
We are socially responsible and put our money where our
mouth is; 10% of profits to charity every year.
New powers for the Financial Conduct Authority
From the 1st of April the Financial Conduct Authority will gain powers
to prosecute competition offences. There is no change otherwise to
the existing laws, but this does mean that there is likely to be increased
scrutiny of competition law offences in the financial services sector.
A division of Reed Elsevier (UK) Ltd. Registered office 1-3 Strand London WC2N 5JR Registered in England number 2746621 VAT Registered No. GB 730 8595 20. LexisNexis and the
Knowledge Burst logo are trademarks of Reed Elsevier Properties Inc. © LexisNexis 2015 0315-063