Corporate know how

Non-Variation Clauses: actions speak louder than words

Non-variation clauses are an evergreen boilerplate provision found in commercial contracts. They typically provide that a binding variation of a contract is generally limited to certain prescribed circumstances, most likely for the variation to be formalised in a written instrument and signed by the contracting parties. Most understand this to be the final word on […]


Contra proferentem: when to exclude an exclusion cause

The contra proferentem rule broadly states that where there is doubt about the meaning of a contract, the words will be construed against the party who put them forward. This is because a party who imposes terms on another must make those terms clear and should suffer the consequences if it fails to do so. […]

The sole director-shareholder dilemma: Kings Court Trust Limited and others v Lancashire Cleaning Services Limited

Mr Pilling was the sole director and sole shareholder of a cleaning company, Lancashire Cleaning Services Limited (the “Company”). Sadly, Mr Pilling died suddenly on 28th February 2017. Following his death, the Company endeavoured to continue trading. Before his death, Mr Pilling had prepared a Will appointing executors to administer his estate. However, regrettably, the […]


Court of Appeal Judgment: First Subsea Ltd v Balltec Ltd and others [2017] EWCA Civ 186

In First Subsea Ltd v Balltec Ltd and others [2017] EWCA Civ 186 the Court of Appeal had to make a judgment on whether a director found to be in breach of fiduciary duty could rely on a limitation defence under the Limitation Act 1980. Background E was the director and founder of First Subsea […]

Dispute resolution in a future EU / UK trade “deal”: what are the likely costs of avoiding indefinite European Court of Justice jurisdiction?

In most commercial negotiations, discussions about dispute resolution procedures are usually left until last. The parties don’t like to poison negotiations by talking about how they resolve disputes before they even reach agreement. But the future resolution of disputes in any eventual EU/UK agreement has exercised both sides already in the embryonic negotiations. This is […]


Draft e-Privacy Regulation published by EU Commission

On 10 January 2017, the European Commission presented its formal proposals for a new ePrivacy Regulation. These represent an overhaul of privacy rules relating to direct marketing, cookies and similar technologies, and other forms of online monitoring. The Commission’s aim is to have the new Regulation adopted by 25 May 2018. Accordingly, unless the UK […]

Recent ruling highlights different disclosure requirements for accountants and solicitors

Question: what is the extent of solicitors’ duty of disclosure, and in particular is there a duty to disclose information gained from acting for one client to another? The decision in Harlequin Property (SVG) Limited v Wilkins Kennedy (a Firm) [2016] EWHC 3188 (TCC) held that accountants do not owe such a duty and in […]


High Court rules member’s profit share can be subject to forfeiture (Hosking v Marathon Asset Management LLP [2016] EWHR 2418 (Ch))

The High Court has ruled that a profit share payable to a member of an LLP was capable of being subject to forfeiture where the member was found to have breached his fiduciary duties to the LLP. Facts The Claimant, Jeremy Hosking, was a founding member of the Respondent, Marathon Asset Management (the “LLP”), and […]

Karen Millen loses name game, again.

Karen Millen has lost yet another legal battle, in this case to use her own name on clothing and household goods in China and the US. In Karen Denise Millen v Karen Millen Fashions Limited and Others[1], the judge found that the use of Millen’s first name in connection with clothing and accessories would breach […]


The Confirmation Statement

On the 30 June 2016, the annual return was replaced by the new Confirmation Statement (form CS01). This reform was intended to reduce the administrative burden involved with submitting the annual return, but has also resulted in some confusion over the practicalities of the new rules. In this article we unpack the requirements of the […]

High Court rules software = goods in commercial agency relationship

The question of whether software constitutes goods or services has always been problematic.  The answer can determine if and when certain terms are implied into a commercial contract, which in turn may have significant financial consequences for the losing party in a dispute. This was illustrated most recently in the High Court case of The […]


Brexit – An impact analysis for businesses

Timescale If Article 50 is invoked, the UK will have a 2 year window to negotiate terms of its departure from the EU. This can only be extended with the unanimous consent of all Member States. There are various schools of thought on whether Article 50 notification can be withdrawn unilaterally.  One school of thought […]

Why Britain’s current semi-detachment from EU Competition principles could become complete post Brexit

Much of the speculative commentary on Brexit and its implications for competition law has adopted “a business as usual” analysis.  It is said that we are bound to follow EU law while we are members and that it is likely that competition law based on the EU/EEA model will kick in once we leave – […]


PSCs and confirmation statements: a corporate law formalities update

This update follows on from our previous article on the topic published in March 2016: http://gdknowledge.co.uk/urgent-persons-with-significant-control-register/ As of the 6th April 2016, there is a requirement to maintain a PSC register with a Company’s Statutory Books. From the 30th June, this information must be submitted to Companies House along with the new annual Confirmation Statements. For companies incorporated […]

BBC Independence; a contradiction in terms?

The much anticipated BBC White Paper, published this month, heralds fundamental changes. On the basis that almost £5 billion of our annual revenue (including £3.7 billion from the licence fee) goes into funding the BBC’s activities, transparency over its decision-making is clearly vital. On the other hand, over-interference may damage the BBC’s commercial competitiveness and […]


Urgent – Persons with Significant Control Register

As of 6 April 2016, there are new Regulations which will be in place which will have an impact on all private unlisted companies and LLPs. The draft Register of People with Significant Control Regulations 2016 (“Regulations”) will be in force from 6 April 2016 and they will require all UK unlisted companies and LLPs, […]

Legal update: register of people with significant control

Background On 25 January 2016, the draft Register of People with Significant Control Regulations 2016 (“Regulations”) were published and laid before Parliament for approval. The Regulations reflect the government’s proposals, following the introduction of the Small Business, Enterprise and Employment Bill on 25 June 2015 (“SMEE”), that companies should hold, and have available for inspection, […]


Battle over Banksy: High Court decision on landlord and tenant dispute

In September, the High Court handed down summary judgment in Creative Foundation v Dreamland Leisure Ltd. The case concerned the ownership of a mural. Mr Justice Arnold’s judgment has implications for future landlord and tenant disputes. Background On 28 September 2014 during the Folkestone Triennial, the famous graffiti artist Banksy spray-painted “Art Buff”, a graffiti […]

Supreme Court Judgment: Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015]

In Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015], the Supreme Court considered a combined appeal as to whether certain contractual clauses which imposed a sanction, were unenforceable due to them being penalty clauses. Background The 1914 case of Dunlop Pneumatic Tyre Co set the rule that penalty clauses […]


Court of Appeal Judgment: Thomas v Dawson & Anor [2015] EWCA Civ 706

In Thomas v Dawson & Anor [2015] EWCA Civ 706 the Court of Appeal was called upon to make a judgment on whether the Court has absolute discretion to make awards in unfair prejudice petitions under s 994 Companies Act 2006. Background The Companies Act 2006 (“CA 2006”) allows for a member of a company to […]

Ownership of ‘Old Flo’: Tower Hamlets LBC v Bromley LBC

In Tower Hamlets LBC v Bromley LBC [2015] EWHC 1954 (Ch) the court was called on to determine the legal owner of a 1957 Henry Moore sculpture known as ‘Draped Seated Woman’ or, more affectionately, ‘Old Flo’. Inspired by Moore’s experience as an official war artist in London during the second world war, Old Flo […]


Significant changes to company law in the UK, Small Business, Enterprise and Employment Act 2015

The government’s aim in introducing the Act is to enable small businesses to innovate, grow and compete. The hope is also that internationally it will endorse the UK as a trusted and fair place to do business. The Act received Royal Assent on 26 March 2015 and is set to have a significant impact on […]

Legal Update: Vidal-Hall and Others v Google Inc

Last month, the Court of Appeal handed down judgment in Vidal-Hall and Others v Google. The appeal was only on preliminary issues and it looks like there will be a subsequent appeal before the substantive matter reaches trial. However, this decision is likely to have a far-reaching impact on UK data protection and privacy law. […]


The small business, enterprise and Employment Bill: Update

The Small Business, Enterprise and Employment Bill (the “Bill”) was first published in June 2014.  The draft Bill, as amended on report, was published on 12 March 2015, with its third reading taking place in the House of Lords on 17 March.  On 24 March the House of Commons approved the Lords’ final amendments and […]

Caravaggio in Court: Auction Houses, Duty of Care and Breach of Contract

In Thwaytes v Sotheby’s [2015] EWHC 36 (Ch) the High Court found that Sotheby’s had not been negligent in auctioning a painting as a copy, rather than as an original Caravaggio. Sotheby’s was entitled to rely on its own expertise and connoisseurship, and to assess the painting first and foremost on its quality. Background The […]


New rules on company names and trading disclosures coming into force on 31 January 2015

As part of the government’s “red tape challenge” aiming to reduce the level of administrative burdens on businesses, two new regulations are due to come into force on 31 January 2015, which will amend the rules on company names and trading disclosures. The two new regulations are: The Company, Limited Liability Partnership and Business Names […]

Is your confidentiality clause drafted widely enough?

You are looking to sell your shares in a company, but is it possible that the confidentiality provisions in your shareholders’ agreement will prevent you from doing so? This question was put to the High Court in Richmond Pharmacology Ltd v Chester Overseas Ltd and others [2014] EWHC 2692, where judge Stephen Jourdan QC found […]


Register of Members: Court of Appeal guidance on “Proper Purpose”

In Burry & Knight Limited & Another v Knight [2014] EWCA Civ 604 the Court of Appeal considered, for the first time, the prevention of access to a company’s register of members under section 117 of the Companies Act 2006. Background Prior to the Companies Act 2006 (“CA 2006”), it was easy to identify the […]

Can you be liable under an indemnity for sums that have not yet been paid out?

In the recent case of Durley House Ltd v Firmdale Hotels Plc [2014] EWHC 2608 (Ch), the High Court considered whether the defendant indemnifier was liable under a contract of indemnity, when the claimant indemnified party had not yet paid out the sums owed to the creditor. Facts The Claimant tenant entered into a lease […]


US Supreme Court rules in Aereo TV Copyright Case

US broadcasters have won an important battle in their efforts to prevent an unlicensed service from providing online real-time streaming of their broadcasts. The Facts On 25 June 2014, the US Supreme Court delivered a pivotal judgment in American Broadcasting Companies v Aereo, tackling the question as to whether or not Aereo, a technology company […]

Small Business, Enterprise and Employment Bill – Corporate Governance: Proposals that all UK companies should be aware of

The Small Business, Enterprise and Employment Bill was introduced to Parliament by the government in June 2014. Drafted in response to the 2013 BIS discussion paper ‘Transparency & Trust: Enhancing the transparency of UK company ownership and increasing trust in UK business’, the Bill sets out a number of proposals which, once implemented, will have […]


FCA Imposes New Regulation on Crowdfunding

The Financial Conduct Authority (‘FCA’) published a Consultation Paper in October 2013 regarding its proposed regulatory approach to crowdfunding over the internet and the promotion of what the FCA calls “non-readily realisable securities” (i.e. an unlisted share or debt security with no, or a very limited, secondary market). The comments to the Consultation Paper have […]

A New Competition And Markets Authority: But No New Dawn For Public Competition Law Enforcement In The UK

With a certain amount of trumpeting, the new Competition and Markets Authority (“CMA”) came into existence on 1 April – thus merging the OFT and the Competition Commission. The CMA has the largest annual budget (£52m) of any competition law enforcement agency in Europe – so much will be expected of it. Unfortunately, any reform […]


The Corporate Veil And Its Piercing As Clear As…?

Introduction The issue of piercing the corporate veil has recently come under the spotlight. However, the recent cases have sometimes been decided in a way that is not entirely consistent and this has caused uncertainty. They can have important application both for individuals in the way that they structure their affairs and companies, particularly international […]

New Tax Rules for LLP Members

The Government has issued draft anti-avoidance legislation to be included within the Finance Bill 2014, which overrides the current presumption that a member of an LLP is self-employed for tax purposes and is not an employee. This is in response to HMRC concerns that individual members of LLP’s are benefiting from being treated as self-employed for tax purposes, in circumstances where those members are effectively in the position of an employee.


Penalty Clauses in Commercial Agreements Following El Makdessi v Cavendish Square Holdings

It is common for parties to commercial agreements to agree mechanisms for resolving breaches of their agreement without having to resort to legal proceedings. Typically this is done by incorporating provisions, such as forfeiture or compulsory buy-back clauses, into a contract which are activated upon one party’s breach of its terms. In such a situation, […]

Should Merger Control Be Repatriated To The UK (And All Other Member States)?

Since 2012, the Government has been conducting an audit of EU powers (or “competences” to use the jargon) with a view to seeking whether their repatriation to the UK in appropriate cases.  In a recent consultation, it has got round to asking interested parties on about the current division of regulatory responsibilities between Brussels and […]


Nestlé v Cadbury: registering a colour as a trademark

Société des Produits Nestlé SA v Cadbury UK Limited [2013] EWCA Civ On 4 October 2013 the Court of Appeal decision in Nestlé’s challenge to Cadbury’s registration of a shade of purple as a trademark for their chocolate products gave careful consideration to the application of Article 2 of the Trade Marks Directive 2008/95/EC. Registration […]

Google Defeats Authors’ Guild in US Book-Scanning Dispute

Google has won the latest battle in its long-running dispute with the US Authors’ Guild over its plan to create a digital library of every book in the world. On 14 November 2013, US Circuit Judge Denny Chin ruled in favour of Google in the matter of The Authors’ Guild, Inc et al v Google […]


Buying a Hotel – Our Top 6 Points

Whether you are an experienced hotelier or just starting out in the hotel industry, the process of buying a hotel can be a daunting prospect. From financing the purchase, to structuring the deal, to due diligence, to negotiating the commercial terms, there are many things to consider and each will impact the success of your […]

ICO Publish Guidelines On Direct Marketing

Background The Data Protection Act 1998 (the ‘DPA’) is based on eight data protection principles. The DPA protects individuals’ personal data and places obligations on organisations to process that personal data fairly and safely. The DPA applies to direct marketing by mail. The DPA defines “direct marketing” as:- “The communication (by whatever means) of any […]


Negotiating Contracts: Why “Subject To Contract” Matters

The importance of creating clarity of intentions during the negotiation process of any contract has been reiterated in a recent decision by the High Court. The regulation of negotiating contracts has long centred on the concept of the parties’ intentions and whether one or both are intent on creating a legal relationship. It is important […]

Contractual Interpretation – Implied Terms

The High Court has recently delivered a judgment on the interpretation of a restriction on the transfer of shares contained in pre-emption provisions in a shareholders’ agreement. Read more. The recent Court of Appeal decision in McKillen v Misland (Cyprus) Investments Ltd and others (2013) confirms the Court’s reluctance to imply a term into a […]


…By Any Other Name – Mistaken Identity in Contract Law

In the case of Derek Hodd Limited v Climate Change Capital Limited the High Court has delivered a significant judgment which may assist those who fall victim to the consequences of mistaken identity. It is common for businesses to use trading names which bear little or no resemblance to the names of the legal entities […]

Consumers and Businesses: Do you know your Rights and Obligations?

The time has come to reform the complicated rights of both consumers and businesses when buying goods and services. On 13 June 2013, the Government published a new draft Consumer Rights Bill following the consultation period which ran throughout 2012. The proposed legislation aims to consolidate the rather complex existing consumer protection law, which is […]


domain-name.revolution?

In 2011, the Internet Corporation for Assigned Names and Numbers (ICANN, the professional body for domain name registration) launched the new generic top level domain (gTLD) programme to permit the introduction of new top level domains on the internet. The move, which has attracted much publicity, will allow web addresses to end in a whole range of new domains (such as .app, .sport, .accountant) beyond the likes of .com, .co.uk and .net.

UK Takeover Code – Changes Afoot for Some AIM Companies

The UK Takeover Code, operated by the Takeover Panel, is the regulatory regime that governs the majority of public takeovers in the UK. The Takeover Code is an evolving document and changes occur, normally following a consultation process, fairly regularly. The last set of major changes were introduced in September 2011.These included provisions trying to prevent what were termed virtual takeovers, provided transparency on previously standard offer related arrangements, banned break fees except in particular circumstances and added some disclosure requirements, particularly in relation to fees. The changes were much discussed at the time and many thought that they were likely to have a large effect on the conduct of takeovers. Experience since then has not necessarily borne that out and it will be interesting to see what effect the latest changes have on takeovers.


Financial Promotion – Key Considerations for Private Companies Seeking Investment

A summary of the key considerations for private companies seeking investment.

Ofcom will Lose Competition Enforcement Powers

The Enterprise and Regulatory Reform Bill currently going through Parliament will merge the OFT with the Competition Commission creating the Competition and Markets Authority (“CMA”) and in so doing will broadly align the UK enforcement of competition law with systems in continental Europe such as DG Comp and the German cartel office. In the little noticed clause 45, the new CMA will have the power to insist that Ofcom hands over responsibility of a given competition matter to it.


ECHR – its Growing Influence on Substantive Competition Law

To date, the impact of the European Convention on Human Rights (EHCR) on competition law has mostly been confined to procedural matters. For example, Article 6 provisions in ECHR that recite a number of fundamental rights of defence, have often been invoked by companies that have been found guilty of competition law infringements on the grounds that these rights were ignored by the EC Commission. Although these challenges have generally been unsuccessful, it is now accepted that Article 6 rights apply not only to criminal proceedings in the classic sense, but can be used by companies subjected to regulatory fines.

Reorganising the Regulation of Financial Services in the UK: The Financial Services Act 2012

1st April sees the introduction of a new structure for the regulation of financial services in the UK. Is its rolling out on April Fools’ Day just a bit of quirky Britishness or a true indication that we would be fooling ourselves in thinking that a mere re-organisation could prevent a repeat of the banking and financial crisis?


The Art of Crowdfunding

With the arts’ increased use of pledge/reward crowdfunding to help fund public projects, what pitfalls must artists, dealers and investors avoid if they wish to monetise their investment?

Validity of Post-Acquisition Restrictive Covenants

In a recent case, the Court considered the issue of whether covenants in a share purchase agreement amounted to penalties and whether restrictions were an unreasonable restraint of trade.


Executive Remuneration: Changes in 2013

There are a number of company law proposals expected to be implemented in 2013. These include reforms relating to executive remuneration and the introduction of the new employee-owner status

Excessive Director Remuneration

Court of Appeal overturns High Court Decision on Unfair Prejudice


The Legal Aid, Sentencing and Punishment of Offenders Act 2012

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) received royal assent on 1 May 2012. The primary purpose of the bill was to reform the civil litigation costs and funding framework, but a number of other changes were also included which may have wide reaching consequences for businesses in England & Wales and their directors and senior officers.

The Seed Enterprise Investment Scheme (SEIS)

The Seed Enterprise Investment Scheme (SEIS) was introduced by the Finance Act 2012 and applies to shares issued on or after 6 April of this year. Although inherently similar to the current Enterprise Investment Scheme (EIS) we discussed last month, the SEIS focuses on smaller, early stage companies and aims to use tax reliefs to encourage much needed investment. The fundamental drive behind the SEIS is to help stimulate entrepreneurship by encouraging strategic investment.