Commercial news vlog - May 2020

Commercial news vlog - May 2020

 

 

In association with Iain Larkins from Radius Law, we discuss:

  • Recovery of losses

  • Employer not liable for employee’s deliberate data breach

  • No liability for self-employed medical practitioner

  • Price monitoring tools

     

Corporate & Commercial

When is control too remote?

A party to litigation has a duty to disclose documents in its control but are documents held by a subsidiary company, in the parent’s control?  A recent case has clarified control will not be implied simply because there is a parent-subsidiary relationship, but a parent company will be deemed to have control over a subsidiary’s documents where there is an existing arrangement or understanding (whether or not that’s legally enforceable) which, in practice, provides the parent with a right of access to the subsidiary’s documents.

See News Analysis: When does a parent company have ‘control’ of subsidiary’s documents? (Pipia v BGEO Group Limited)

 

Recovery of losses

A recent High Court case saw a direct challenge to the traditional approach of categorising losses that arise from a breach of contract.  This followed several cases in recent years where the judiciary have called for the need to reform this area of law and a 2016 decision where the Court departed from the traditional approach, albeit by reference to specific wording.

The traditional approach established in the Hadley v Baxendale [1854] case categorised recoverable losses as either:

  • direct losses - losses that arise naturally from the breach (e.g. if a factory is destroyed, direct losses would include the cost of rebuilding it and the loss of production during the rebuild); or
  • indirect losses (often also referred to as consequential losses) - losses which may reasonably have been in both parties’ contemplation at the time of the contract (e.g. the loss of a long-term contract).

The problem with this distinction is that it does not match the common business understanding of the terms.  Most business people are likely to assume that by excluding indirect losses in their contracts, they are

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About the author:

Louisa leads marketing for the in-house legal community at LexisNexis. She joined the dedicated in-house team at LexisNexis four years ago and has a passion for driving and facilitating initiatives which are customer-focused at their heart. Her vision is to support in-house counsel succeed in their fast-evolving role based on deep insight, data analysis and best practice gathered across the in-house community.

Prior to her in-house focused role, Louisa led the marketing for the bar and mid-market private practice sectors as well as product marketing lead for LexisPSL - LexisNexis' cloud based, practical guidance and legal research software solution.

She brings 20 years' marketing experience both client and agency side, specialising in B2B marketing in the Legal, TMT (Telco, Media and Technology) and Financial Services industries. In both South Africa, Europe and the UK.

Louisa is also an active member on the LexisNexis Gender Equality Matters (GEM) steering committee and is involved with the Families at LexisNexis Group which brings together, supports and lobbies for change those with an interest in balancing the challenges of work and family.