Monthly commercial law update: Top 5 developments in November

Monthly commercial law update: Top 5 developments in November

Today *drum roll* we introduce a new feature of the Comet blog: a monthly 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.

Not only that *drum roll continues* we also set out any new statutes and statutory instruments that might also be of interest to commercial lawyers and their clients.


Internet and e-commerce: Court mindful of consumer protection in forum dispute

The recent High Court case of Oak Leaf Conservatories Ltd v Weir and another [2013] EWHC 3197 (TCC), [2013] All ER (D) 281 (Oct) offers some important guidance to businesses offering cross-border services.

A dispute arose as to the making and fitting of various furnishings by the claimant company Oak Leaf which was based in England. The defendants were domiciled in Scotland. The defendants contended the proceedings should be issued in Scotland rather than England.

The court decided that, on the evidence and particularly on the willingness of Oak Leaf to work in Scotland and deal with Scottish planning law, the appropriate forum for the dispute would be the Scottish courts.

Advertising and marketing law: Court of Appeal upholds appeal about Christian advertisement

The Court of Appeal has dismissed by majority an appeal by London Christian Radio and a Christian magazine publisher that wanted to run a radio advertisement about its perceived marginalisation of Christians in the workplace.

In London Christian Radio Limited and another, R (on the application of) v Radio Advertising Clearance Centre and another [2013] EWCA Civ 1495 the Radio Advertising Clearance Authority refused to clear the advertisement on the grounds that it was political advertising.

At first instance, the judge upheld the Radio Advertising Clearance Authority's (RACC's) position. The Court of Appeal held that the term 'political' has a wide meaning and that the advertisement had a political nature. However, Elias LJ produced a dissenting judgment, saying that he would uphold the appeal and did not believe that the advertisement contravened the ban on political advertising because the advertising was not, in his view, seeking to achieve a political end. Permission to appeal to the Supreme Court was refused.

The decision is significant for charities and other bodies which produce advertising which may be considered to be political.

Equality law: Supreme Court upholds rulings that owner of hotel unlawfully discriminated against gay couple

The Supreme Court has ruled in Hall and another v Bull and another [2013] UKSC 73 that a Christian couple who owned a hotel in Cornwall and operated a policy of no unmarried couples in double rooms breached equality legislation when they refused a double room to a gay couple in a civil partnership. Lady Hale commented 'we should be slow to accept that prohibiting hotelkeepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion'.

Contract law: Interpretation of contract

Mileform Ltd v Interserve Security Ltd [2013] All ER (D) 52 (Nov), [2013] EWHC 3386 (QB) concerned the interpretation of a contract for services.

In 2005 and without entering into a formal written contract Mileform began to provide logistical and storage services to Interserve . In 2010 an agreement was reached and Mileform stated it required the chief operating officer as a signatory. Although he orally agreed to the agreement he did not sign the document. A dispute arose between the parties who agreed to terminate the storage arrangements in return for a fee. The question for the court was whether the partly written and partly oral agreement reached between the parties contained an exclusivity term allowing Mileform to claim damages not only for alleged breaches of contract but for the exclusivity period.

In addition to refuting any breach of agreement on its part, Interserve contended that there was no oral agreement as to an exclusivity clause and further that even if there was such an agreement it had no contractual effect because of an entire agreement clause in the written agreement.

The court held that on the evidence no exclusivity term had been agreed and that any exclusivity that may have been agreed was too uncertain to form part of any agreement between the parties.

Contract law: Retention of title clauses

In the case of Caterpillar (NI) Limited (formerly known as) FG Wilson (Engineering) Limited v John Holt & Company (Liverpool) Ltd [2013] EWCA Civ 1232, the Court of Appeal has partly reversed a High Court decision [2012] Akk ER (D) 50 (Sep) in an action for the price of goods.

The claimant supplied goods and related services to the defendant on its standard terms which included a no set-off clause and a retention of title clause. The defendant failed to pay the claimant's invoices and subsequent repayment plan so the claimant issued proceedings. The claimant had also issued separate proceedings for alleged breach of another agreement between the parties. The defendant had resold the goods to its Nigerian subsidiary. The High Court found in the claimant's favour and its decision that the no set-off clause was reasonable under the Unfair Contract Terms Act 1977 was not appealed.

However, the defendant appealed with the issues being whether the no set off clause should prevent a defence of set-off, whether the retention of title clause prevented title passing from the claimant to the defendant, and if it did, was the claimant still able to bring an action for price under section 49 of the Sale of Goods Act 1979.

The Court of Appeal allowed the appeal by majority. It agreed with the High Court that the no set-off clause was effective, but disagreed that title passed to the defendant under the retention of title clause. It held that the clause prevented title passing to the defendant and that the claimant could not bring an action for price under section 49

New statutory instruments of interest to commercial lawyers this month:

  • Business Protection from Misleading Marketing (Amendment) Regulations 2013: New powers to take civil enforcement action in cases of misleading marketing are to be given to the Gas and Electricity Marketing Authority (GEMA) from 14 November 2013. These powers are intended to be used in relation to businesses working within the energy sector
  • Court of Appeal (Recording and Broadcasting) Order 2013: Provides the conditions which need to be fulfilled to permit the broadcasting of visual and sound recordings of Court of Appeal hearings. The provisions came into effect on 30 October 2013
  • Motor Vehicles (Third Party Risks) (Amendment) Regulations 2013: Motorists will no longer have to produce evidence of valid motor insurance when they are taxing their vehicle from 16 December 2013
  • Redress Schemes for Lettings Agency Work and Property Management Work (Approval and Designation of Schemes) (England) Order 2013: Provision is made for approved redress schemes for dealing with complaints by consumers against lettings agents and property management agents, who are required to be members of such a scheme
  • Small Companies (Micro-Entities & Accounts) Regulations 2013: Very small companies ('micro-entities') will be excluded from requirements to provide certain financial information and permitted to produce and file abridged accounts containing only minimum prescribed notes under the Regulations. They partially implement Council Dir 2013/34/EU on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings in order to reduce the administrative burden on those companies. The Regulations, once in force, will apply to financial years ending on or after 30 September 2013

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