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Class discrimination and the workplace: TUC proposes new laws
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 16 October 2019

The Trades Union Congress (TUC) recently published its recommendations for eliminating class-based bias in society. Its report points to a number of statistics demonstrating that working-class individuals suffer disadvantage in the employment sphere. As such, the TUC has proposed (among other things) the introduction of compulsory class pay gap reporting for all employers.

World freezing orders: recent dissipations and reasonable delays
RPC
  • Litigation
  • United Kingdom
  • 15 October 2019

The High Court has held that a delay in applying for a world freezing order was not fatal to its continuation at the return date, as the underlying transactions provided solid evidence of a risk of dissipation and the delay in seeking relief was not material and did not evidence the absence of a genuine belief in that risk. While the court may be reluctant to freeze assets on the basis of historic transactions, the ultimate question is whether solid evidence exists of a risk of dissipation even if the trail goes somewhat cold thereafter.

Labour Party announces plans for new Workers' Protection Agency and Ministry for Employment Rights
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 09 October 2019

During the Trades Union Congress conference in early September 2019, the Labour Party announced plans for a new Workers' Protection Agency and Ministry for Employment Rights. In particular, Labour Party Leader Jeremy Corbyn promised the biggest ever extension of employment rights in the United Kingdom, designed to put power in the hands of workers. Other Labour Party proposals include expanding 'worker' status to everybody except genuinely self-employed persons.

Tortious claims against third party may trigger anti-suit injunction
RPC
  • Litigation
  • United Kingdom
  • 08 October 2019

A party's attempt to circumvent a jurisdiction clause by bringing tortious claims against a third party has been thwarted by the High Court. In granting an anti-suit injunction, the court explored the substance of the claims and found them to be vexatious and oppressive and designed to evade the exclusive jurisdiction clause. This case demonstrates the courts' willingness to look into the substance of an impugned foreign claim in order to assess whether it is a tactic designed to evade an exclusive jurisdiction clause.

Claridge's, candles and cautionary tales
Taylor Wessing
  • Intellectual Property
  • United Kingdom
  • 07 October 2019

The name Claridge's brings to mind one of the most luxurious hotels in London rather than court rooms and trademark law. Trading since 1856, the hotel is unlikely to have foreseen its recent dispute with a company which has sold candles and reed diffusers under the name Claridge since 2018. The case serves as a stark reminder that trademark searches must be completed prior to launching a new brand or product name.

Holiday need not be prorated for term-time workers
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 02 October 2019

The Court of Appeal has held that holiday entitlement and pay for workers on permanent contracts should not be prorated to reflect the fact that they work on a part-year basis. In light of this decision, employers using set percentages to calculate holiday pay should consider auditing their workers on permanent contracts to ensure that these fixed rates do not result in them receiving less than their statutory entitlement.

One bad disclosure apple can spoil the whole full and frank barrel
RPC
  • Litigation
  • United Kingdom
  • 01 October 2019

The High Court recently provided a further reminder of the perils of failing to comply with the duty of full and frank disclosure on ex parte applications. This case highlights the onerous burden on applications for worldwide freezing orders to carry out reasonable enquiries to comply with the duty of full and frank disclosure. The court expects applicants to properly investigate the factual basis of their own assertions and that of the likely defence.

Clarity over English court's jurisdiction to grant anti-arbitration injunction against foreign-seated arbitrations
Clifford Chance
  • Arbitration & ADR
  • United Kingdom
  • 26 September 2019

The Court of Appeal has partly upheld, and partly dismissed, an injunction granted by the High Court to restrain an arbitration seated in Lebanon. In so doing, the Court of Appeal has confirmed the English court's power to grant anti-arbitration injunctions pursuant to Section 37(1) of the Senior Courts Act 1981 in respect of a foreign-seated arbitration where the dispute does not fall within the scope of the arbitration agreement and the proceedings are, or would therefore be, vexatious and oppressive.

Court of Appeal confirms that parties can be forced to engage in certain types of ADR
Forsters LLP
  • Private Client & Offshore Services
  • United Kingdom
  • 26 September 2019

The Court of Appeal recently overturned the High Court judgment in Lomax v Lomax, confirming that the courts can order early neutral evaluation even without the parties' consent. The decision – which was made in the context of a claim by a widow under the Inheritance (Provision for Family and Dependants) Act 1975 and which was strongly resisted by her stepson – will be of particular interest to private client practitioners because of the court's endorsement of early neutral evaluation in the context of family disputes.

Women and Equalities Committee proposes radical changes to enforcement of discrimination law
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 25 September 2019

A report by the Women and Equalities Committee has recommended a fundamental shift in the way in which discrimination claims are brought so that individuals do not carry the burden of enforcing their rights. The report urges the Equalities and Human Rights Commission to bring more cases and better publicise its enforcement work so that employers and other organisations are not complacent about equality.

Remedies in public procurement claims: when can a declaration of ineffectiveness be granted?
Womble Bond Dickinson (UK) LLP
  • Projects & Procurement
  • United Kingdom
  • 24 September 2019

A recent public procurement case brings into focus the circumstances in which a declaration of ineffectiveness (DoI) remedy may be available under the Public Contracts Regulations 2015. The decision affirms the principles set out in Alstom and provides more certainty for contracting authorities and successful bidders as to the likelihood of a DoI being an available remedy should they face a procurement challenge after a contract has been entered into.

W&I insurance: courts confirm approach for assessing damages for breach of warranty
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • 24 September 2019

​Warranty and indemnity (W&I) insurance is widely used across the breadth of global M&A activity to provide protection to buyers for breaches of warranty. While W&I insurance policies govern how and what claims can be made by buyers, there is considerable case law relating to the measure of damages for breach of warranty. In particular, recent case law confirms that the normal measure for damages is the difference between the value of the shares 'as warranted' and the value of the shares 'as is'.

Subjective expectation versus objective intention: when will terms be implied into contracts?
RPC
  • Litigation
  • United Kingdom
  • 24 September 2019

The High Court recently implied a term into a contract for the sale of government global depositary notes by Lehman Brothers International (Europe) in order to make the contract workable. The decision is of interest because it considers how the courts should address a situation where the subjective expectation of the parties at the time is clear, but the objective intention apparent from their bargain is more difficult to determine, particularly where the objective interpretation may lead to a contract being incapable of being performed.

What a future without social media 'likes' could mean for industry
Bird & Bird LLP
  • Tech, Data, Telecoms & Media
  • United Kingdom
  • 20 September 2019

From Facebook's 'thumbs up' to Reddit's 'upvote' and Instagram's and Tik-Tok's 'likes', so-called 'vanity metrics' used by social media platforms are ubiquitous. For these platforms, it is important to consider the impact that shifting engagement trends might have on user-generated content in the context of online harms. Platforms should therefore examine what can be done to improve self-regulation (eg, removing 'addictive' structures such as visual metrics) to ensure that the online world is a supportive place.

European works councils cannot slow down managerial decision making
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 18 September 2019

In the United Kingdom's first appeal case on the operation of a European works council, the Employment Appeal Tribunal (EAT) has ruled that European works councils cannot slow down managerial decision making by delaying the provision of an opinion after being informed and consulted. The EAT's decision is unsurprising but nonetheless welcome for employers.

Pay heed to tiered dispute resolution clauses
RPC
  • Litigation
  • United Kingdom
  • 17 September 2019

The High Court recently upheld a tiered dispute resolution clause in accordance with established principles of contractual interpretation. The court ordered a stay of proceedings for mediation and, in support of the mediation, also ordered pleadings to be served in advance to optimise the prospects of a settlement. This decision continues the post-Sureterm union between commercial common sense and the plain and ordinary meaning of words.

Offshore wind extension round: seven projects progress through plan-level HRA
CMS Cameron McKenna Nabarro Olswang LLP
  • Energy & Natural Resources
  • United Kingdom
  • 16 September 2019

​The Crown Estate has confirmed that seven offshore wind extension projects will progress to the award of rights following the completion of its plan-level Habitats Regulation Assessment (HRA). Project-specific environmental assessments will be required for each site before the developers seek planning consents under the statutory planning process. Importantly, the plan-level HRA identifies mitigation measures that will be secured.

UK competition authority continues to penalise individuals for competition law infringements
Gowling WLG
  • Competition & Antitrust
  • United Kingdom
  • 12 September 2019

The Competition and Markets Authority (CMA) recently publicised the disqualification of three individuals from acting as directors as a consequence of their company's involvement in an infringement of UK competition law. In view of the CMA's commitment to enforcement actions and to ensuring that directors are held personally responsible for competition law compliance, individuals and organisations should, among other things, proactively consider the extent of any potential exposure that they may face.

Why is a change to allergen labelling laws necessary and what will happen next?
Burges Salmon LLP
  • Product Regulation & Liability
  • United Kingdom
  • 12 September 2019

The government recently announced that food businesses will soon be required to provide full ingredient labelling on foods which are pre-packed for direct sale. Such products will also need to clearly state whether their ingredients include any of the 14 declarable allergens. This will benefit all consumers with allergies, who will be able to clearly see from the label whether a pre-packaged product contains any of the declarable allergens, regardless of where the product was prepared and packaged.

Private M&A on trial: interpreting private M&A sale and purchase provisions
Davis Polk & Wardwell LLP
  • Corporate Finance/M&A
  • United Kingdom
  • 11 September 2019

Two recent High Court of Justice decisions provide guidance on the interpretation of provisions customarily included in sale and purchase agreements for the acquisition of private companies or businesses. In the first decision, the court considered whether the provisions of a purchase price procedure were conditions precedent. In the second decision, the court considered the scope of a restrictive covenant in an employment agreement and its impact on sale and purchase agreements.

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