Archive for the ‘Commercial contracts’ Category

Creating a more “cloud-friendly” Europe

Monday, January 30th, 2012

At the World Economic Forum recently Neelie Kroes announced the setting up of the “Cloud Partnership”.

With it she announced a policy to increase the uptake of cloud computing throughout Europe through the creation of common standards and regulation, together with an initial investment of Euro 10 Million from the European Commission to make it happen.

Personally I’m always a little concerned by announcements to boost the economy through greater regulation. If however the policy results in greater uptake of cloud computing by the public sector (whether through true “public” clouds or through the greater use of “private” clouds), as common standards are agreed and accepted then there is a real chance of (much-needed) cost savings, which must be welcome.

Let’s hope an agreement on standards can be reached more quickly than agreement on the debt crisis, even if it does involve putting up with unnecessary repeated references by politicians to becoming “not just Cloud friendly but Cloud active”.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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In house lawyers have had a difficult time of it before the European courts recently

Tuesday, December 20th, 2011

First there was ECJ decision in Akzo Nobel suggesting that advice from in house counsel on competition issues would not be subject to legal advice privilege (creating a practical problem for in house lawyers advising their employer on competition issues).

Then in May the first instance court of the European Union took the view that in house counsel should not be able to plead proceedings before it – a judgement that was appealed in August.

Last week The Law Society published its letter to Ken Clarke, urging him to intervene in the appeal – but could an intervention really prevent the erosion of the in house lawyer’s role before the European Courts, now that Akzo Nobel has set a precedent? Should the appeal fail its likely to have profound consequences for in house lawyers.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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Oral contracts – worth the paper they’re written on?

Tuesday, November 29th, 2011

The recent changes to the construction act removed the requirement that a construction contract had to be in writing. Whilst this was a sensible change, the recent case of BVM Management Ltd v Roger Yeomans t/a The Great Hall at Mains highlights the risks surrounding oral contracts.

The Court of Appeal upheld a (non-construction) county court decision that an oral contract for a fixed two-year term contained an express term that it could be terminated on three months’ notice, so limiting BVM’s claim for damages for wrongful termination.

There is no new law here. However, it is an important reminder of the risks of relying on oral contracts / unsigned draft agreements. Being a lawyer, you won’t be surprised to hear me say that it’s best to get your agreed terms into a signed contract – especially fundamentals such as the right to terminate. But a thought for the sceptics: both parties in this case had to spend time and money litigating all the way to the Court of Appeal, far outweighing any legal fees they’d have paid had this been resolved at the start …

Posted by Tim Claremont, who specialises in domestic and international engineering and construction, including contractual and delay claims across all forms of dispute resolution; also contract drafting and negotiation.

Tim Claremont

Tim Claremont
0115 976 6520
tclaremont@brownejacobson.com

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Collaboration key to cyber crook crackdown campaign

Monday, November 28th, 2011

Francis Maude has launched the UK Government’s Cyber Security Policy – £650 Million to be spent over four years for a National Cyber Security Programme (NCSP), the establishment of a Cyber Crime Unit (crime) and a Joint Cyber Unit (military defence).

So what will these new cyber-men and cyber-women be doing?

Looking at risks in cyberspace for one thing – from terrorists, hackers, spies and criminals making the 20,000 malicious emails a month sent to government networks, as well as sharing information on and combating those risks – but also developing common standards for cyber security and a voluntary code of practice.

For IT security professionals it would be worth noting the potential opportunity to build a wider acceptance of their technology and to legitimately work with competitors. For the rest of us the rewards lie in the result – better protection online. Let’s hope for a successful collaboration.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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The importance of business common sense

Friday, November 25th, 2011

The Supreme Court has recently commented on how it decides between two reasonable interpretations of a clause (Rainy Sky SA v Kookmin Bank).

The Court confirmed that “if there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other”. In keeping with this, the Court found against the party that was unable to advance any commercial reason why its interpretation should be adopted.

The case continues the move by the Supreme Court away from a strict (and some might say, overly literal) approach to the interpretation of contracts to a position where commercial purpose is generally more important than the niceties of language. This is welcome, but does it really amount to much more than the members of the Court confirming that they want to sleep well at night?

Posted by Tim Claremont, who specialises in domestic and international engineering and construction, including contractual and delay claims across all forms of dispute resolution; also contract drafting and negotiation.

Tim Claremont

Tim Claremont
0115 976 6520
tclaremont@brownejacobson.com

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Historic bribery case lands court clerk behind bars

Friday, November 18th, 2011

Munir Yakub Patel, an administrative clerk, made legal history today after being handed a three-year prison term for bribery and ordered to serve six years concurrently for misconduct in a public office.

Patel pled guilty on October 14 this year to requesting and receiving a bribe intending to improperly perform his functions, contrary to Section 2 of the Bribery Act. Patel was charged in relation to his employment at Redbridge Magistrates Court and was the first person charged since the Act came into force.

The imposition of a prison sentence for a relatively minor instance of bribery shows very clearly that the Act will not just be used against big corporates and sends a powerful message to individuals and smaller businesses. If businesses have not yet put in place suitable procedures to ensure compliance with the Act then this case should serve as a reminder as to why they need to so. The threat of unlimited corporate fines and prison for employees is very real.

Matthew Woodford

Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com

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A stitch in time …

Tuesday, October 18th, 2011

Last week we looked at the legal principle that a party cannot benefit from its own breach.

It’s worth remembering that you can exclude or modify this principle in your contract. The extent to which it is excluded or modified just depends on the form of words you choose – as a recent case shows.

As ever, you need to be careful with your drafting. In particular, if you list the circumstances when a party’s breaches of contract will prevent it from taking an action (in this case, serving a notice of rescission), this may have the effect of meaning other breaches of the contract will not prevent it from taking that step.

One further point – the clause in question was a late handwritten amendment and the judge commented that he didn’t think the parties had thought through its effect. In other words, it really is worth spending that little bit of extra time considering the implications of last minute changes to a contract …

Posted by Tim Claremont, who specialises in domestic and international engineering and construction, including contractual and delay claims across all forms of dispute resolution; also contract drafting and negotiation.

Tim Claremont

Tim Claremont
0115 976 6520
tclaremont@brownejacobson.com

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What should we make of the proposed “Common European Sales Law”?

Friday, October 14th, 2011

A proposal for a common sales law across the 27 states of the EU to anyone opting into its terms has just been published. Does this signify a major development for businesses entering contracts throughout the EU?

In the short term, I confess, I doubt it – for one thing there already exists a voluntary piece of sales legislation to which businesses could opt-in if they wanted. I am of course referring to the United Nations Convention on Contracts for the International Sale of Goods (CISG), to which 76 countries have already signed up (with some notable exceptions such as the UK, India and Brazil).

An advantage the new EU instrument could have over the CISG however is a single supreme court (the ECJ) to determine how it should be interpreted. Over the long term we may yet all need to learn how it works alongside national contract law. I’ll certainly be watching to see how it develops.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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To break or not to break?

Thursday, October 13th, 2011

Have you entered into an agreement for lease which is conditional upon the landowner/developer satisfying certain conditions, (such as obtaining planning, carrying out works etc), by a specified end date? Did the agreement also allow both parties to terminate if the conditions weren’t satisfied by this end date?

In these challenging times, it’s useful to remember the old adage that a party cannot benefit from its own breach. Recent case law upheld a prospective tenant’s argument that a developer could not terminate the agreement where it was in breach of its own reasonable endeavours obligations, despite this not being expressly set out in the drafting…so check the wording carefully (and of any exclusions) if you find yourselves unhappily on the wrong end of a termination notice. Footnote – we’ll have to see how this decision goes on appeal. We’ll keep you posted!

Posted by Sarah Parkinson, who specialises in property development and retail; heads up commercial property development practice, dealing with complex projects and commercial property transactions, including options and development agreements.

Sarah Parkinson

Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com

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Google increases patent arsenal

Monday, September 19th, 2011

With its recent acquisition of 1,023 patents from IBM, Google now owns approximately 20,000 patents.

Previously, Google has lagged behind its competitors in developing a substantial patent portfolio and, as a result, has been seen in some quarters as vulnerable to patent infringement litigation. However, following its acquisition of Motorola Mobility in August, and the recent acquisition of patents from IBM, Google has put itself in a position where it could respond to infringement threats with its own ‘cold war’-like threat of mutually assured destruction. Alternatively, Google may be plotting its own infringement claim offensive.

Patents are increasingly the weapon of choice for technology companies looking to maintain a competitive edge. A potentially beneficial result of this is that the need to avoid a competitor’s patents may sometimes promote innovation and create new patentable technologies.

In the meantime, no comfort is given to smaller companies, which may struggle to afford the costs of ensuring that their innovative ideas do not infringe the patent portfolios of the technology “super-powers”.

Posted by Ryan Harrison, who specialises in intellectual property agreements and disputes, licensing, commercial contracts, and commercial and intellectual property issues arising from M & As and disposals.

Ryan Harrison

Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com

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Getting your money back just got (slightly) easier

Monday, August 15th, 2011

Imagine buying something big e.g. a ship or production line. The seller wants a payment upfront. You agree in return for a promise from a third party that you’ll be repaid if the seller fails to deliver (an “advanced payment guarantee”). The seller disposes of its business, meaning that the guarantee no longer refers to the right party. Can you still enforce the guarantee?

The Court of Appeal gave a purchaser in this situation greater comfort by treating the advanced payment guarantee as a performance bond (a primary obligation). Interpreted this way, rather than as a guarantee (a secondary obligation), the purchaser can enforce it even where the original contract for sale has been changed – which might otherwise have rendered a guarantee void.

With so much at stake and an “all or nothing” result, there is no substitute for clear drafting to make it clear that rights are intended to survive. A few extra words in the guarantee could have avoided the dispute entirely.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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Putting the “gross” in gross negligence

Wednesday, May 11th, 2011

Unlike other jurisdictions, courts in the UK have not normally made a distinction between gross negligence and negligence of any other kind (para 54).

In a recent case however where a set of terms and conditions excluded liability for negligence “other than gross negligence or wilful default”, the court held that a distinction does exist and that an (otherwise negligent) failure to exercise proper skill and care might not amount to gross negligence unless there was also (for example) an “indifference to an obvious risk”.

It’s a distinction that may well be seized upon by those drafting contracts for suppliers – being grossly negligent suggests a greater lack of care than mere negligence, and a greater hurdle to be overcome in the event of a claim. From a customer’s perspective it is a distinction worth looking out for if you want to ensure you have a remedy for mere (trivial) negligence on the part of those providing financial or other services and want to ensure you receive the highest standards of care.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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Selling a company? Know that it’s about to lose a source of revenue?

Thursday, April 28th, 2011

Do you need to tell the (potential) buyer about the future threat to the business? If you want to avoid a claim for misrepresentation you do… or risk unlimited liability.

A case on 20th April this year has confirmed the position at English law that silence (when you know an honest statement is no longer true) can amount to fraudulent misrepresentation.

It’s not the first such case to make this point (as anyone who attends our regular in house lawyers forums will be aware) but it does place the bar higher for sellers of businesses, who must balance the threat to the sale against the (very real) threat of a claim, in respect of which they will not be able to limit liability.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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Switching to cloud computing – a sensible move for the insurance CIO?

Thursday, April 28th, 2011

It’s always useful, when advising on issues such as cloud computing, to hear the views of CIOs, so I was delighted to be invited by Post Magazine to be part of a round table discussion on the subject – looking at cloud computing in the insurance sector.

To me, the benefits of cloud computing make a switch nearly inevitable, although there are some significant and justifiable fears about both data security and availability – particularly in the light of recent events, making the choice of a private cloud the more palatable option for critical business functions.

There are practical restraints on use of cloud computing in the insurance sector but the consensus was that these could be overcome. Indeed, several of those present were actively looking at a switch to cloud computing in the near future.

With the right contractual assurances and safeguards in place it seems cloud computing is coming – even to the (traditionally risk-averse) insurance sector.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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How to silence an ex-colleague

Tuesday, April 19th, 2011

Whether it’s an angry ex-colleague, ex-employee or ex-director – if your business has valuable confidential information that it needs to protect, these people will inevitably know about it.

When that person leaves – how do you stop them from disclosing information about your product or company to other suppliers?

We looked at practical legal steps (restrictive covenants, contractual provisions) and technical/IT steps that you can use to prevent the loss of IP, data and know-how in a recent workshop and picked up some useful industry perspectives from those who attended.

If all else fails then the court will intervene, occasionally with a fairly stringent perpetual injunction, prohibiting that person from (ever!) disclosing that information, as in a recent case involving a golf trolley device .

To get such a prescriptive remedy however you’ll need to act fast, demonstrate a real threat and that other remedies will not suffice. Getting the right IP and contractual protection in place before you reach a dispute can significantly improve your chances.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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Entire agreement clauses don’t work…

Friday, April 15th, 2011

… or at least, they don’t do everything you might want them to.

A recent Court of Appeal decision took a similar line to the first instance ruling in BSkyB v EDS in reaching the conclusion that an entire agreement clause that said that the agreement constituted:

“the entire agreement between the parties” and would “supersede any previous promises, agreements, representations, undertakings or implications” made prior to the contract was not enough to exclude liability for misrepresentations made outside the contract terms, although it will prevent collateral warranties arising.

If you want to exclude liability for misrepresentation (as those who attend our regular in-house lawyers forums will be all too aware) you need to have either an explicit exclusion of liability for misrepresentation or, better still a statement that neither party has relied upon statements not included in the contract.

Suppliers who want to exclude comments made by salespeople in negotiations need to check their contracts. For those seeking to bring a claim for misrepresentation this judgement, like BSkyB v EDS, breaks down an important obstacle to bringing a claim.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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Government ICT strategy launched

Wednesday, April 6th, 2011

The UK Government recently released its ICT Strategy following on from manifesto commitments made prior to the election.

It makes for interesting reading. The proposals for the sharing of IT infrastructure is one that struck a particular chord as it’s one that we recently advised on and seems a common sense approach to making ICT more efficient.

Other proposals worth picking up are the preference for open source software where possible, to make greater use of cloud computing, a presumption against large projects and an environment for SMEs in particular to be able to access contracts and to test solutions.

Inevitably, given the scope of the strategy, it is short on detail on any one area. Some areas however (cloud computing, use of open source solutions, use of many providers) will need careful management if government-held data about all of us is not to be kept securely. Data security is likely to be key to ensuring that these proposals turn out as planned.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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Court of Appeal settles insolvency principle dispute

Thursday, March 31st, 2011

The Court of Appeal has today upheld a High Court decision that clauses inserted into contracts withdrawing rights on insolvency will not be enforceable.

According to the Court of Appeal judgment in Towergate Stafford Knight Company Limited (now Folgate London Market Limited) v Chaucer Insurance Plc any such clause would fall foul of the anti-deprivation principle and is therefore void.

The anti-deprivation principle is a common law rule that prevents parties from depriving their creditors of the benefits of their assets should they become insolvent.
This Judgment demonstrates the ongoing relevance of the anti deprivation principle and the profound effects that this can have on commercial contracts. Further guidance on the principle can be expected to come from the Supreme Court when the Judgment in Belmont is handed down.

Posted by Paul Cox, specialising in: large loss and catastrophic cases including brain and spinal injuries; fatal claims and those involving chronic pain syndrome; regularly asked to advice on policy liability/interpretation

Paul Cox

Paul Cox
0121 237 3912
pcox@brownejacobson.com

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Due care and attention!

Monday, March 28th, 2011

A contract claim where the terms and conditions states “subject to English Law and practice” does not necessarily confer jurisdiction to the English courts.

In Mujur Bakat SDN BHD v Uni Asia General Insurance BHD the Commercial Court was asked to review the situation where proceedings had been issued in the Commercial Court and leave given to serve on the defendants in Malaysia where the companies were based. The claimants were also Malaysian companies but the parties had incorporated the ITC clauses in their contract.

The claim concerned two alleged breaches of warranty and the court needed to consider whether the English courts were the most appropriate forum for trial which meant that the court had to look at matters such as witness availability and where the parties carried on business. Clearly on these factors the natural place for the case to be heard was Malaysia.

Yet another decision demonstrating how important it is to be precise in drafting contractual terms so that they accurately reflect what the parties intended….

Posted by Nichola Evans, who specialises in professional indemnity work , directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.

Nichola Evans

Nichola Evans
0207 337 1019
nevans@brownejacobson.com

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Are you infringing if you fail to pay a licence fee?

Tuesday, March 1st, 2011

I was always taught, that a company using intellectual property must necessarily either:

A) Own it; B) Be licensing it (from a third party); or C) Be infringing (a third party’s rights)

A case in the Patents County Court last month however has looked at the question – “if you are using copyright material under licence, but fail to pay the ongoing licence fee – are you therefore infringing the owner’s rights?” The answer was no – it is not necessarily an infringement. Even though you are in breach of the licence, so may be in breach of contract, it does not necessarily follow that you are infringing copyright, or that the licensor has a right to terminate the licence.

From a pure contract law perspective, this isn’t that surprising but is a reminder that if you don’t put express wording in a contract, the courts will not imply it for you (so it is worth getting the wording in at the start).

When and how contracts can be terminated for breach is an issue we’ll be covering at the next in house lawyers forums on 16th, 29th and 31st March. Please sign up here if you’d be interested in attending.

Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.

Richard Nicholas

Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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