Monthly commercial law update: Top 5 developments in October

Christmas is almost upon us, or so the retailers would like us to think.

However the Commercial PSL Team have been closely observing Autumnal developments in the commercial legal world and are here to provide you with a round-up of our top 5 stories from October.

*Please see our blog on the Supreme Court’s judgment in ParkingEye v Beavis and Cavendish Square v El Makdessi, two associated cases on penalty clauses. The judgment was handed down on 4 November 2015 and is therefore not included in our October highlights.

Consumer protection: Consumer Rights Act 2015—consumer notices

Will the CRA 2015 tighten up consumer notices? A consumer notice is any notice that relates to rights or obligations between a trader and consumer or where the trader is seeking to restrict their liability.

The CRA 2015 states that a notice will include an announcement, whether verbal or in writing, and any other communication or purported communication and reforms the law on consumer notices. They were not expressly covered in previous legislation but they are specifically covered in the CRA 2015. This brings them within the fairness regime. Businesses will therefore have to be conscious of the content which is included in notices and ensure that this complies with the fairness test.

Competition law: Cartel findings in BA case

In Emerald Supplies v BA, [2015] EWCA Civ 1024, the Court of Appeal has found the necessary ingredient of intention lacking and so struck out claims against BA (reliant upon European Commission cartel findings) based on the economic torts of (i) interfering with business by unlawful means and (ii) conspiracy to injure using unlawful means. The Court of Appeal overturned the first instance decision that BA's strike out application was premature. It also overturned the judge's award of indemnity costs against BA.

The Court of Appeal also held that a lower court decision (Pergan Hilfsstoffe für industrielle Prozesse GmbH v European Commission (T-474/04), [2007] ECR II-4225, [2007] All ER (D) 171 (Oct)) was wrong to allow disclosure of an unredacted version of a Commission decision to the claimants' confidentiality ring. The Court of Appeal overturned the decision and clarified that the question was not whether the Pergan protection was absolute but whether a national court is obliged to afford the same level of protection which is provided by European Community level. It concluded that the national courts were obliged.

Data protection: Article 29 Working Party issues opinion on Schrems case

The Article 29 Working Party has issued a statement following the decision in Maximilian Schrems v Data Protection Commissioner (Case C-362-14). The statement provides initial guidance on the effect of the Court of Justice of the European Union (CJEU) decision both at European Union (EU) and member state level.

Transfers from the EU to the United States can no longer take place under the European Commission adequacy decision 2000/520/EC (Safe Harbor decision). The Working Party advises that member states and the European Commission should discuss with the US authorities suitable political, legal and technical solutions enabling data transfers to the territory of the United States that respect fundamental rights.

If no appropriate solution is found by the end of January 2016, the EU data protection authorities will take any appropriate action, which may include coordinated enforcement actions.

Intellectual property: the logic behind Logitech—jurisdiction and design rights

Further to the High Court decision of Tech 21 UK Ltd v Logitech Europe SA [2015] EWHC 2614 (Ch) Ian Wood and David Fyfield of Charles Russell Speechlys, who acted for Tech 21, advise that if you are drafting a letter before action in relation to the infringement of Community design rights you need to consider whether the country in which the recipient is domiciled has national laws in relation to groundless threats, regardless of whether the letter principally concerns acts that occurred elsewhere.

If you want the letter to be perceived as only threatening proceedings in a particular country, then you should be careful about requesting a declaration from the alleged infringer in relation to acts in other Member States.

If your client is on the receiving end of a threat of proceedings and they would have to bring proceedings for a declaration of non-infringement in a country which they do not have any connection to (in this case, Tech 21 had no connection to Croatia or the Netherlands), then you may be able to make use of provisions concerning groundless threats of infringement to bring proceedings in a country your client is more comfortable with.

Supply of goods and services: Appointment of Small Business Commissioner

Following consultation the government has announced that it will create a Small Business Commissioner through the Enterprise Bill 2015. The Commissioner will serve as a point of contact for those small businesses that are in dispute with a larger business and feel that they are being treated unfairly, and that the cost and time involved in court action could be avoided.

 
That’s all for now. Don’t forget, by entering your name and email address in the box on the right hand side of this page you will receive our handy full monthly round-up PDF for free, along with other exclusive content courtesy of our Comet newsletter.