Latest legal and regulatory news: 15th April

Latest legal and regulatory news: 15th April

In this issue:

In-house

Risk & Compliance

Commercial

Corporate

Info law and TMT

Employment

LexTalk®In-house: a Lexis®PSL community


 

Crafty Counsel videos available in Lexis®PSL

LexisNexis® has entered into a content sharing partnership with Crafty Counsel, the market-leading provider of video guidance for in-house lawyers.

A selection of Crafty Counsel videos are now available within Lexis®PSL—you can find them in the ‘Training for you and your team’ topic within Lexis®PSL In-house Advisor and they are also available alongside practical guidance and tools in related Lexis®PSL subtopic areas. Practice Note: Crafty Counsel videos in Lexis®PSL In-house Advisor contains a consolidated list of all the videos currently available. Additional videos will be added over the coming months, so watch this space.


 

Virtual networking and forum events

There’s no need to feel isolated if you’re working from home—join one of our virtual networking or forum events. Even if you aren’t working from home, take some time to network with your peers, find out what challenges they’re facing and how they are meeting those challenges.

28 April 2021
Making the intangible, tangible: Demonstrating value as an in-house legal function
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In this session we discuss how in-house counsel are approaching value creation through Chatham House peer discussion and sharing results from a benchmarking study of over 300 UK legal teams. Which activities provide higher value and increase the influence and impact of the legal team? What practical approaches can you consider to harness untapped areas of opportunity?
26 May 2021
Your essential regulatory and commercial news update: Brexit, COVID-19, Data Protection and more
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Iain Larkins, Founder and CEO from Radius Law and Sandra Martins, Head of Employment, will highlight the key priorities for legal departments from recent government and regulatory guidance updates and recommended practical next steps to consider, including Brexit and COVID-19 Stop Press alerts and how to prepare for the outcome of an adequacy decision.
23 June 2021
The power of an effective learning, development and training strategy
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In this session we explore how a robust approach to learning, development and training can benefit you, your team and your organisation to tangibly demonstrate the value of the legal department. Interactive discussion led by senior counsel and subject matter experts will explore practical approaches on how to deliver effective training to the business; top tips on how to implement a learning and development programme for you and your team; and the opportunities presented by the SQE and the day-to-day implications to consider in the immediate future.
Various dates
LexisNexis® Aspire Forum for Junior In-house Lawyers
To register your interest in joining the events, sign up as an Aspire member today
Aspire is a professional development and networking forum for junior in-house counsel. We have several events planned for the new year to continue supporting you through these uncertain times and provide a platform for you to connect with your peers. Events take place at the same time each month, from 5pm to 6.30pm.


Financial crime prevention

The Financial Action Task Force (FATF) and G20 Anti-Corruption Working Group (ACWG) held a meeting on 1 April 2021 on improving beneficial ownership transparency. Subjects discussed included potential amendments to Recommendation 24 on transparency and beneficial ownership of legal persons and the ACWG’s upcoming Accountability Report. See: LNB News 08/04/2021 72.

G20 Finance Ministers and the Central Bank of Governors have confirmed their commitment and support to the FATF’s tackling of ‘all sources, techniques and channels of money laundering and the financing of terrorism and proliferation’, especially by countering financial crimes linked to coronavirus (COVID–19). See: LNB News 08/04/2021 82.

The Financial Stability Institute of the Bank for International Settlements has published an Insights piece on supervising cryptoassets for anti-money laundering. See: LNB News 09/04/2021 38.

The Crown Prosecution Service (CPS) has announced the launch of its Economic Crime Strategy 2025. Partner, Neil Swift, and associate, Eamon McCarthy-Keen, from Peters & Peters Solicitors LLP, analyse the background and key provisions of the Strategy and its implications. See News Analysis: Ringing the changes with the CPS’s Economic Crime Strategy 2025.

Europol has published the European Union Serious and Organised Crime Threat Assessment (SOCTA 2021), which outlines threats of serious and organised crime facing the EU. See: LNB News 12/04/2021 21.


 

Sanctions and export controls

The Council of the EU has concluded its annual review of the EU’s Iran human rights sanctions regime and has decided to extend its restrictive measures responding to serious human rights violations until 13 April 2022. Measures include travel bans, asset freezes and export controls. See: LNB News 14/04/2021 31.


Brexit

The European Parliament’s Committees on Foreign Affairs and International Trade have will hold a vote on the consent recommendation for the EU-UK Trade and Cooperation Agreement in an extraordinary meeting on 15 April 2021. The European Parliament will take its final decision following the committees’ vote on the consent recommendation. See: LNB News 14/04/2021 68.

The European Scrutiny Committee has published its 41st report of the 2019–21 session as part of its inquiry on UK parliamentary scrutiny of the Withdrawal Agreement Joint Committee and application of the Northern Ireland Protocol. The government’s response to the report is due by 9 June 2021. See: LNB News 09/04/2021 54.

The British Exporters Association has published an analysis on the impact of Brexit on the use of International Commercial Terms. See: LNB News 14/04/2021 55.

HMRC has published further new/updated guidance for imports, exports and customs to reflect the Post-Brexit regime. The update covers the period from 6 April 2021 to 12 April 2021. See: LNB News 12/04/2021 35.


 

Contracts

The Technology and Construction Court gave summary judgment, holding that a clause in a professional services agreement containing a cap on liability, exclusions on liability, and a net contribution clause applied even to fundamental, wilful, or deliberate breaches of contract. Written by Marcus M Birch, associate director at Bryan Cave Leighton Paisner LLP, London, see News Analysis: Can an exclusion clause or liability cap apply to a deliberate or fundamental breach? (Mott MacDonald v Trant Engineering).

In Score Draw v PNH International the court held that a restrictive covenant in a shareholders’ agreement is akin to a restrictive covenant between the seller and buyer of a business and will benefit from the more liberal approach to enforcement that such agreements attract. That approach, based on the respect that the courts generally show to contract terms freely negotiated by commercial parties of more or less equal bargaining power, permits the protection of a wider range of legitimate interests than is the case with a restrictive covenant in an employment relationship, but even so, the restrictive covenant will be struck down if it goes further than is reasonably necessary to protect the legitimate business interests of the covenantee. Written by David Fisher, barrister and an associate member of New Square Chambers, see News Analysis: Enforceability of restrictive covenants in a shareholders’ agreement and the assessment of damages for breach (Score Draw v PNH International).


 

Agency

The Court of Appeal held in Wood v Commercial First Business that it was neither necessary nor desirable to find a fiduciary duty in order to grant civil remedies for the payment of a bribe or secret commission. All that was required was to ask whether the recipient of the payment had been under a duty to provide advice or information on an impartial or disinterested basis. Written by Charles Joseph, barrister at Tanfield Chambers. See News Analysis: Agency—undisclosed commission—rescission—whether fiduciary relationship required (Wood v Commercial First Business).


 

Consumer protection

The Competition and Markets Authority (CMA) has launched an investigation into MyCityDeal Ltd (Groupon) over concerns regarding misleading pricing practices. See: LNB News 12/04/2021 19.

The CMA has announced that Facebook will take further action to combat fake and misleading reviews on the social media platforms Facebook and Instagram. See: LNB News 09/04/2021 59.

In Green v Betfred, the court allowed Mr Green’s application for summary judgment and ordered Petfre (Gibraltar) Ltd (t/a Betfred) (Betfred) to pay him his winnings of over £1.7m. The case is a useful example of the enforceability of exclusion clauses contained in online terms and conditions, and deals with the types of issue which may prevent a trader from relying on them. Written by Nicole Bollard, barrister at 3PB Barristers. See News Analysis: Exclusion clauses in online consumer contracts (Green v Betfred).


The Financial Reporting Council has published its strategy, plan and budget for 2021–2022. See: LNB News 08/04/2021 34.


Dispute Resolution analysis: In Arani and others v Cordic Group Ltd [2021] EWHC 829 (Comm), the claimants were awarded summary judgment on a claim for payment of deferred consideration under a share purchase agreement held in a retention account. Written by Phillip Patterson, barrister at Hardwicke. See News Analysis: Summary judgment in deferred consideration claim despite permission to proceed with fraudulent breach of warranty counterclaim (Arani v Cordic Group).


The European Data Protection Board (EDPB) has announced the outcome of its 48th plenary session. Key announcements include the adoption of: (i) opinions on the draft adequacy decisions for the UK under the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR) and Directive 2016/680/EU; (ii) guidelines on the application of Article 65(1)(a) of the EU GDPR; (iii) a final version of the guidelines on the targeting of social media users; and (iv) a statement on international agreements including transfers. See: LNB News 15/04/2021 14.

In its statement on draft adequacy decisions the EDPB indicates that it has identified many aspects of the UK regimes to be essentially equivalent to the EU. However, the EDPB also stressed this alignment should be maintained and welcomed the European Commission’s decision to limit the proposed adequacy decisions in time and the intention to closely monitor developments in the UK. See: LNB News 15/04/2021 11.

The European Parliament Think Tank has published an in-depth analysis by the European Parliamentary Research Service on EU-UK private-sector data flows after Brexit. See: LNB News 12/04/2021 3.


The Body of European Regulators for Electronic Communications (BEREC) has opened registration for its online workshop on the market entry in the context of the Digital Markets Act (DMA). The workshop will be held in two sessions and aims to collect views from stakeholders associations and some key potential challengers to digital gatekeepers on the issue of contestability. BEREC encourages stakeholders and interested parties to register for the workshop which will take place on 28 April 2021. See: LNB News 09/04/2021 33.

The European Consumer Organisation (BEUC) has published position papers regarding the proposed DMA and Digital Services Act (DSA), welcoming both proposals as ‘significant steps forward for consumers’. The papers contain a number of proposals for improvement. See: LNB News 13/04/2021 55.


The Supreme Court’s judgment in the long-running litigation Asda Stores v Brierley and others [2021] UKSC 10, provides definitive guidance on the proper operation of the statutory ‘common terms’ requirement which applies in equal pay claims where the chosen comparator works at a different establishment from the claimant. See News Analysis: Equal pay: Supreme Court guidance on ‘common terms’ where comparator is at different establishment (Asda Stores v Brierley and others).


The decision of the CJEU in King v Sash Window Workshop (allowing holiday which could not be taken for a reason beyond the worker’s control to be carried forward for the purpose of a holiday pay claim) does not have the effect of allowing holiday which was taken, but was not paid for, to be carried forward in the same way. A claim for pay in respect of holiday that has been taken but was unpaid must be brought within three months of the date on which the payment should have been made under (a) regulation 30 of the Working Time Regulations 1998, SI 1998/1833, or (b) section 23 of the Employment Rights Act 1996, according to the EAT in Smith v Pimlico Plumbers (UKEAT/0211/19/DA). See News Analysis: Holiday taken but unpaid cannot be carried forward for holiday pay claim (Smith v Pimlico Plumbers).


The Cabinet Office has updated its coronavirus guidance in line with the latest government recommendations, which include getting a test as well as following the stay at home guidance if coronavirus symptoms are experienced. The revised guidance states that there should be a continuation of working from home if possible. Affected guidance documents include: Closing certain businesses and venues in England and Reopening businesses and venues in England. See: LNB News 12/04/2021 12.

HMRC has updated its Coronavirus Job Retention Scheme (CJRS) guidance to include information on employee reference dates, the new maximum wage rates and claim dates. See: LNB News 09/04/2021 32.


The Pensions Regulator has made minor changes to its guidance ‘Automatic enrolment and DC pension contributions: COVID-19 guidance for employers’, mainly to reflect the extension of the CJRS to 30 September 2021, and update the other type of government support schemes available as announced in March 2021. See: LNB News 12/04/2021 4.


 

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About the author:
Allison is a former partner of Shoosmiths, with extensive experience of legal management and practice compliance.