Dispute Resolution analysis: Tom White and Claire Curtis, partner and associate respectively at Clyde & Co LLP, consider the recent decisions in Astex Therapeutics Limited v AstraZeneca AB and The RBS Rights Issue Litigation, which serve as a timely reminder and warning to legal practitioners and clients alike of the limitations on legal advice privilege and that the court retains ultimate discretion to delve behind the self-certified cloak of legal advice privilege to satisfy itself that privilege is being exercised in the correct manner. Further, consideration should be given by large organisations as to which employees are ‘the client’ to ensure that communications with in-house legal advisers are protected under legal advice privilege.

In the vast majority of road traffic accident claims, a motor insurer will provide full indemnity to their insured under their insurance policy. However where there has been a breach of policy, the insurer may be able to contractually avoid liability. In such circumstances, the status of the motor insurer will need to be considered in greater detail. The hierarchy of insurers status in relation to an accident is as follows:

1 For the avoidance of doubt the documents comprising the

This Practice Note considers hierarchy of documents clauses within a building contract (otherwise known as order of precedence clauses, precedence clauses or priority of documents clauses). Construction contracts can be lengthy and made up of a number of different documents, both legal and technical—this Practice Note looks at how the courts approach a contract when there is a conflict between different elements of them. It looks at how the priority of contract documents can be expressly dealt with in the conditions themselves, how effective these clauses will be in a dispute, and contains example hierarchy of documents clauses setting out the order of precedence of various contract documents. It also considers how standard form building contracts, including JCT, NEC and FIDIC, deal with the hierarchy of documents, the effect of BIM protocols, and looks at general common law rules as to the priority of documents within a construction contract. Hierarchy of construction documents Building contracts for construction projects are usually made up of a number of different documents which, together, describe the works to be

The recommendations of the Higgs Report in relation to the effectiveness of non-executive directors, published as Good Practice Suggestions from the Higgs Report, and later replaced by the FRC Guidance on Board Effectiveness.

An independent review of the role and effectiveness of non-executive directors led by Derek Higgs in January 2003.

With effect from 1 February 2021, provision was made in the Family Procedure Rules 2010 (FPR 2010), by FPR 2010, PD 41C (Proceedings by Electronic Means: Appeals in Family Proceedings Heard in the High Court), for appeal proceedings in the Family Division of the High Court to proceed by electronic means using an online case management system in specified circumstances. For practical guidance on appeals generally, see Practice Notes: Appeals—general principles, practice and procedure, Applications for permission to appeal in the Family Court and Preparation for an appeal and orders that may be made. General For the purpose of FPR 2010, PD 41C, appeal proceedings means: • an application for permission to appeal, and • an appeal A document means anything in which information of any description is recorded and includes, but is not limited to, an application, a notice, a statement or a letter. FPR 2010, PD 41C supplements FPR 2010, SI 2010/2955, 41.1, which makes provision for proceedings that are subject to FPR 2010 to be dealt with by electronic

IP&IT analysis: In what circumstances are geographical names registrable as trade marks? The challenges are illustrated in the High Court’s ruling in Canary Wharf v The Comptroller General of Patents, Designs and Trade Marks.

Life Sciences analysis: This case (Merck Serono v The Comptroller General of Patents, Designs and Trade Marks involved Merck’s recent appeal of the UK Intellectual Property Office (UKIPO) decision that its supplementary protection certificate (SPC) application for its medicinal product cladribine falls foul of Article 3(d) of Regulation (EC) 469/2009 (the ‘SPC Regulation’). That is, there were already MAs granted for the active ingredient. In its appeal, Merck sought to disapply the CJEU Santen case (C-673/18), which said (reversing Neurim (Case C-130/11)) that a different use for the same active ingredient does not allow for an SPC where there has already been a marketing authorisation (MA) for it, on the basis it should be found to apply ex nunc (i.e. from now on) and not ex tunc. Michael Tappin KC, sitting as a deputy judge of the UK High Court, held that Court of Justice decisions are to apply ex tunc (ie from the outset) unless expressly stated otherwise, and, in turn, dismissed Merck’s appeal. It appears possible that a further appeal might be sought by Merck in light of comments made by the Judge regarding the ability of higher UK courts (Court of Appeal and Supreme Court) to diverge from retained Court of Justice case law and Merck reserved its position on Santen having been wrongfully decided. Written by Fergus Brown, associate and Daniel Byrne, partner at AA Thornton IP LLP.

IP analysis: The Commercial Court rejected a challenge to an award made by an arbitration tribunal. Cipla argued that royalties were due on the sales of Salix’s antibiotic medicine, Xifaxan, used to treat gastrointestinal disorders, pursuant to a patent licence agreement. The tribunal dismissed Cipla’s claim. Cipla argued that the tribunal had failed to consider its duty to act fairly and impartially, and as a result there had been a serious irregularity which would cause it a substantial injustice. In particular, Cipla argued the tribunal had based its decision on a finding which contradicted its own earlier ruling. The court disagreed, and found in favour of Salix. The court held that in on the evidence before it, there was no breach by the tribunal of its duty to act fairly and impartially. There was therefore no need to consider the issue of substantial injustice. This case is of interest because it affirms the role of arbitration proceedings in pharmaceutical patent licence disputes, while confirming that courts will only rarely get involved in challenging awards made by arbitration tribunals. Written by Sarah Taylor, senior practice development lawyer at Pinsent Masons LLP.

Commercial analysis: The High Court ruled that agreements between two direct access barristers and their client which included a non-refundable advance fee were unfair under the Consumer Rights Act 2015 (CRA 2015). In addition, the court found that the barristers had no common law quantum meruit claim for recovering their fees, as this might create disincentives for traders to ensure that their terms were fair. The engagement letters were based on a Bar Standards Board template, but the requirement to pay the whole and non-recoverable fee was not required in the template. As a result, the judge said that he was neither validating nor judging the BSB terms. The decision is also of wider interest with regards to the treatment of non-refundable advance fees. Written by Helen Hart, senior practice development lawyer, Lewis Silkin LLP.

IP analysis: The High Court has allowed an appeal by GAP (ITM) Inc, in relation to an opposition decision in respect of a UK trade mark application for the word mark GAP 360 in respect of various services in classes 35, 36, 39 and 41. The opposition was partially successful, based on TMA 1994, s 5(2)(b), but the court concluded that the hearing officer had made errors of principle in reaching his decision, and that it was therefore necessary for the court to reassess the likelihood of confusion. It held that the qualifying wording ‘all relating to gap travel’ added to the specification for certain classes in the trade mark application lacked legal certainty and so must be left out of account when conducting the assessment. In the circumstances, it concluded that, in all of the classes applied for, the application was sufficiently similar to the earlier marks, such that there was a likelihood of confusion within the meaning of TMA 1994, s 5(2).