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Happy New Year to all of our readers! The team here is looking forward to the challenges that 2014 will doubtless bring although if it involves any more rain we're all going to move to Dubai or, failing that, the Atacama Desert in Chile.
In the meantime, here's this month's round-up of the top 5 most interesting developments in commercial law (as the team here sees it), extracted from our monthly Lexis®PSL Commercial round-up. We also set out any new statutes and statutory instruments that might also be of interest to commercial lawyers and their clients.
Following the Government's consultation about implementing the Consumer Rights Directive earlier in 2013, it has now issued the final Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
The regulations will apply from 13 June 2014 and replace the current distance and doorstep selling legislation.
The key changes from the current legislation are that the current cooling off period will be extended to 14 days and consumers buying digital content will be protected as well as those buying tangible goods and services.
The Government has now included provisions in the regulations implementing rules on delivery and risk, which it originally intended to implement via the Consumer Rights Bill. The Government has already implemented provisions in the Consumer Rights Directive regarding 'above-cost' payment surcharges in the Consumer Rights (Payment Surcharges) Regulations 2012, which came into force on 6 April 2013.
According to a recent survey, one in five companies has suffered at least one attempt to steal its trade secrets in the last ten years. The 2013/2014 Kroll Global Fraud Report says the numbers are increasing, with 25% of companies reporting theft of information in 2013, up from 18% in 2012.
The European Commission has proposed new rules in the form of a Directive on the protection of undisclosed know-how and business information, ie trade secrets, against their unlawful acquisition, use and disclosure.
There are substantial differences in the laws in place in EU countries on protection against trade secret misappropriation. Some countries have no specific laws on the issue. Businesses find it difficult to understand and access the systems of other Member States and whenever they become victims of misappropriation of confidential know-how, they are reluctant to bring civil court proceedings as they are not sure the confidentiality of their trade secrets will be upheld by the courts.
The current fragmented system has a negative effect on cross-border co-operation between business and research partners and is a key obstacle to using the EU single market as an enabler of innovation and economic growth.
The draft Directive introduces a common definition of trade secrets under Article 2. The Directive also provides a means through which victims of trade secret misappropriation can obtain redress. It aims to make it easier for national courts to deal with the misappropriation of confidential business information, to remove the trade secret infringing products from the market and for victims to receive damages for illegal actions.
The Commission's proposal on the protection against misappropriation of trade secrets will be transmitted to the Council of Ministers and the European Parliament for adoption under the ordinary legislative procedure
In the case of Talal El Makdessi v Cavendish Square Holding Limited and another  EWCA Civ 1539 a share purchase agreement contained clauses stating that if there was a breach of the seller's restrictive covenants, the buyer's obligation to pay deferred consideration would cease and the buyer would be entitled to acquire the remainder of the seller's shares at price based on net asset value excluding goodwill.
The Court of Appeal ruled that the provisions were unenforceable penalties. Although the case was in the context of a share purchase agreement, issues of unenforceable penalties frequently arise in the context of commercial agreements. Great care should therefore always be taken when drafting such clauses.
The High Court has held in Palmer and Harvey Mclane Ltd v Garrad and another  All ER (D) 55 (dec)  EWHC 3810 (Ch) that a settlement agreement made between the claimant and defendants was valid and enforceable, and that the defendants had failed to establish, to the required standard, that it was sham.
It was settled law that proof of a sham agreement was on a balance of probabilities and the legal burden of proof on the party alleging the sham was a heavy one. Proof of the existence of a dishonest purpose required a strength or cogency of evidence commensurate with the gravity of the allegation. Although the case was decided on the facts, it is a useful illustration of the established law on sham agreements.
We recently reported on the case of Hamsard 3147 Ltd and another v Boots UK Ltd  EWHC 3251 (Pat),  All ER (D) 12 (Nov), in which the Patents Court, dismissed a claim by a company against Boots seeking damages for the alleged wrongful termination of the supply contract. The period of notice of termination given by Boots had been reasonable and Boots had not been obliged as a matter of ‘good faith’ to order from the company goods that it did not want. Boots had not acted in breach of contract in failing to order a ‘transitional range’ or by disposing of broken stock by giving it to charity following the termination of the contract.
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