| Whilst it is understandable that parties may wish to conclude a contract leaving certain issues to be agreed at a later date, this might introduce the risk that the contract becomes void from uncertainty. This important issue was considered by the Court of Appeal earlier this year in MRI Trading AG v Erdenet Mining Corporation LLC ([2013] EWCA Civ 156). Read more... |
| Of trusts and patrimoniesRemus Valsan 10 May 2013 23:05 Patrimony and trust are paradoxical private law concepts. Fundamental in civil law and, respectively, common law traditions, they are shrouded in a dense fog of controversy. Combine them, and you get the perfect comparative private law symposium. The experiment, "a first in the history of the world" as our colleague Ken put it, took place last Friday, 3 May, under the auspices of the Edinburgh Centre for Private Law. It brought together a lively assortment of academics, practitioners and doctoral students, from Aberdeen, to Brisbane, to Montreal. The workshop explored the various ways in which the concept of patrimony has been used, or could be used, to create a civilian trust that is the functional equivalent of the common law trust. Read more... |
| This debate is part of an ongoing campaign carried by People & Planet in conjunction with EUSA, aiming to steer the University towards a more ethical and sustainable investment strategy. The proposals advanced by the two organisations include the creation of an independent committee that would allow stakeholders throughout the University community to challenge investment decisions, and the right to have an elected student representative who will participate to the investment decision meetings. The campaign has also launched a petition calling for a review of the University's investment strategy. This movement is not without precedent in the University's recent history. In 2004 the University accepted a proposal of disinvestment from the tobacco industry, given the University's role as a major centre of medical research. Read more... |
| The talk outlined recent developments on the appropriate measure of the equity risk premium (ERP), a concept that is central to the valuation of shares. More specifically, Moin discussed the recent case of Global GT LP and Global GT Ltd v. Golden Telecom, Inc., 993 A.2d 497 (Del. Ch. 2010), aff'd, 11 A.3d 214 (Del. 2010), in which the Delaware Court of Chancery replaced the historical market returns method of determining the ERP with the supply-side ERP. Read more... |
| Over the weekend of 23-24 February 2013 Edinburgh Law School welcomed five guest teams from across the world to a Pre-Moot event in preparation for the prestigious Willem C. Vis International Commercial Arbitration Moot, which will take place in Vienna 22nd-28th March 2013. This will be the third time Edinburgh Law School has entered the competition, which is now in its 20th year (and the 10th in Hong Kong) and aims to foster practical legal education in international commercial arbitration and international sales law. Edinburgh is one of 13 UK law schools and the only Scottish one to enter a team this year. Read more... |
| The Harbro Group Limited v MHA Auchlochan [2013] CSOH 8, decided earlier this month, provides evidence (if any were needed) of the challenges which the group company structure poses in litigation. I am grateful to my colleague Dr Dan Carr for bringing this case to my attention. Read more... |
| A commercial agent falling within the Commercial Agents (Council Directive) Regulations 1993 owes both a fiduciary duty towards his principal at common law and a duty to act in good faith towards that principal under reg 3(1). There has been little case law in the UK on the meaning of the statutory duty. Although, by contrast, there is a large body of case law on the agent’s fiduciary duty at common law, that duty is often expressed using broad abstract language, making it difficult to apply to concrete situations. The English Court of Appeal case Crocs Europe BV v Craig Lee Anderson & Anor t/a Spectrum Agencies [2012] EWCA Civ 1400, presented an opportunity to shed light on the meaning of both duties and the effect the agent’s breach has on the agency contract. Read more... |
| If a contracting party performs an illegal act in the course of performance of a contract, what impact does that conduct have on the availability of remedies for breach of contract? Can the “innocent” party use that illegality as a defence in order to avoid, for example, payment of damages for breach of contract? This is the important question considered in the recent English Court of Appeal case, Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Read more... |
| The Edinburgh Centre for Commercial Law was delighted to host a conference on EU Procurement Law in conjunction with the commercial law firm, Burness LLP for the third year in a row. The Edinburgh Centre for Commercial Law and Burness welcomed approximately 60 delegates to the Playfair Library from a range of organisations in the public and private sectors. Read more... |
| Solicitors can today breathe a sigh of relief with the release of the Inner House decision in the joined cases of Cheshire Mortgage Corporation Limited v Grandison and Blemain Finance Limited v Balfour Manson LLP ([2012] CSIH 66. The Inner House, in an opinion delivered by Lord Clarke, has rejected an attempt to extend the ambit of the solicitor’s warranty of authority. Lord Clarke summed up the court's view as follows (para [31]) : “We are of the clear view that there are no reasons in principle or practice, for extending the somewhat limited scope and nature of the implied warranty of agents in the way in which the reclaimers’ submissions in the present case contended for.” Read more... |
| To what extent is an agent entitled to act for a competitor of his original principal? This important question was considered by the Court of Appeal in Rossetti and Anor v Diamond Sofa Company Ltd ([2012] EWCA Civ 1021) in a judgment issued on 27th July. Read more... |
| One of the classes on offer during Innovative Learning Week was a class called "Blogging in private law." The class discussed the recent case of Lloyds TSB Foundation For Scotland v Lloyds Banking Group plc ([2011] CSOH 105 and [2011] CSIH 87), a case which we understand is being appealed to the Supreme Court. This case caused us to reflect on the principles of frustration in Scots contract law. Although neither party in the case has, thus far, argued that the contract has been frustrated, arguments raised by the bank on equitable adjustment led the class to look back at the development of frustration. Here is a blog on the case of Tay Salmon Fisheries Company Ltd v Speedie (1929 SC 593) drafted by one of the students in the class, Martin Smail: Read more... |
| Earlier today the Supreme Court issued its judgment in the Aberdeen City Council v Stewart Milne Group Limited appeal ([2011] UKSC 56). The Court had little difficult in reaching a unanimous decision in favour of the Council, upholding the decisions of both Lord Glennie in the Outer House ([2009] CSOH 80) and of the Inner House ([2010] CSIH 21, and see blog at http://www.law.ed.ac.uk/ecclblog/blogentry.aspx?blogentryref=8414). Read more... |
| Members of the Edinburgh Centre for Commercial Law were delighted to welcome Michael Davison from Hogan Lovells as a speaker this week. Hogan Lovells offer an internship scheme as a prize for the two top students in the International Commercial Arbitration Masters course (details of the prize available from the course organiser, Dr Simone Lamont-Black). Michael has become a great friend and colleague having delivered lectures here for the last three years and acted as a speaker at an Arbitration Conference held at the Law School in June 2010. Read more... |
| The English Court of Appeal case of First Energy v Hungarian International Bank ([1993] 2 Lloyd’s Rep 194) poses particular problems for those seeking to understand the law of apparent authority in agency. The House of Lords in Armagas Ltd v Mundogas SA ([1986] A.C. 717) suggested that there is no such thing as a “self authorising agent.” For apparent authority to operate, the representation as to the agent’s authority must come from the principal and not from the agent. Steyn L.J. in First Energy, however, recognised that an agent may be clothed by his principal with the authority to make representations of fact. Those might include the extent of the agent’s own authority. In First Energy the third party was aware that the agent was not authorised. As such, this was a case in which apparent authority could not arise. The Court of Appeal nevertheless found in favour of the third party, who was able to claim damages from the principal. The case therefore robs the requirements of apparent authority of much of their force. Read more... |
| The solicitor's warranty of authorityLaura Macgregor 23 September 2011 22:21 A third party is protected against unauthorised activity of agents in different ways. If the criteria are established, he may be able to raise an action against the principal for damages on the basis of apparent authority. If the principal, notwithstanding the agent’s lack of authority, chooses to adopt the transaction, then it becomes binding through ratification. A less familiar action is the action that the third party has against the unauthorised agent: breach of warranty of authority. In an opinion issued on 23 September, Lord Glennie analysed this action as it applies to solicitors (Cheshire Mortgage Corporation Limited v Grandison and Blemain Finance Limited v Balfour Manson [2011] CSOH 157). Outcomes in cases of this type are highly fact-dependent. On the facts of this case, it was held that the solicitor warranted only that he was authorised, not the identity of his clients. Read more... |
| FHR European Ventures LLP & Ors v Mankarious & Ors [2011] EWHC 2308 (Ch) provides a useful illustration of the way in which the English courts treat the acceptance by an agent of secret commission as a breach of the agent’s fiduciary duty towards the principal. It sheds light on the extent of knowledge which the principal must possess before he can truly be held to have “consented” to the retention of such a payment by the agent. It also focuses on the wider impact on the agent, airing issues such as whether the agent can recover from the principal an allowance for skill and effort in obtaining the profit which he has to disgorge to the principal and the impact on commission earned in other, unconnected transactions. Finally, it illustrates the fact that in English law the agent holds such funds on constructive trust for the principal. Read more... |
| A recent decision from the Inner House, Hill and Anor v Stewart Milne Group and Gladedale (Northern) Ltd [2011] CSIH 50 sheds light on liquidated damages clauses and when they may amount to unenforceable penalties. Read more... |
| The vicarious liability of an agent is an issue which has not been analysed in much depth by the Scottish courts. Some argue that there is no such thing as vicarious liability in agency: merely that the agent is treated as an employee and the established rules relating to employment applied to an agent (P. S. Atiyah, Vicarious Liability, (1967), p.100). This approach arguably fails to take into account the role of the agent’s authority in assessing the principal’s liability. The recent case of Skandinavska Enskilda Banken A.B. (Publ.) v Asia Pacific Breweries (Singpore) Pte Ltd and anor [2011] S.G.C.A 22, decided by the Court of Appeal of Singapore, contains extremely useful analysis of the policy factors underlying vicarious liability (available here: http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/judgment/12453.html?utm_source=rss%20subscription&utm_medium=rss Read more... |
| A recent English High Court case, Boghani v Nathoo [2011] EWHC 2101 (Ch) provides an interesting illustration of the differences between Scots and English partnership law caused by the fact that the Scottish firm has separate legal personality whilst the English firm does not. The decision also sheds light on the meaning of s.38 of the Partnership Act 1890, the interpretation of which has caused difficulties in the past. Read more... |
| In recent times there has been a wealth of analysis of the principles of interpretation of contract. In addition to the Scottish Law Commission report (available at http://www.scotlawcom.gov.uk/law-reform-projects/contract-law-in-light-of-the-draft-common-frame-of-reference-dcf/), useful guidance was provided by the Supreme Court in the Scottish appeal, Multi-Link Leisure Developments Ltd v North Lanarkshire Council ([2010] UKSC 47). A recent OH decision from Lord Glennie, Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc ([2011] CSOH 105) has shed light on an interpretation issue which generally receives little attention from the courts, namely the way in which rules of interpretation are applied where performance of a long term contract has been affected by changed circumstances. Should the interpretative rules be amended to take into account unanticipated changes having an impact on the way the contract operates? Read more... |
| Fiduciary duties in agencyLaura Macgregor 22 June 2011 21:44 John Youngs Insurance Services Ltd v Aviva Insurance Service UK Ltd ([2011] EWHC 1515 (TCC)), decided by Mr Justice Ramsey in the English High Court, makes a contribution to our understanding of fiduciary duties in agency. Although it is an English case, it leads us to reflect on equivalent issues in Scots law, particularly given that English cases are often treated as authoritative in the Scottish courts. Read more... |
| The Edinburgh Centre for Commercial Law was delighted to welcome Dr Severine Saintier as their most recent speaker in their series of events. Her paper on 2nd June focussed on the French system of compensation of commercial agents. Directive 86/653 introduced into Europe a highly protective regime for commercial agents. The compensation provisions contained in that Directive are inspired by French law. Dr Saintier, as a French lawyer working as an academic at Sheffield University, is ideally placed to help us understand the meaning of the compensation provisions as applied in the UK by the Commercial Agents (Council Directive) Regulations 1993. Read more... |
| The meaning of repudiationLaura Macgregor 06 May 2011 18:09 Wyman-Gordon Ltd v Proclad International Ltd [2010] CSIH 99, a case decided by the Inner House at the end of 2010, provides useful guidance on what constitutes repudiation in Scots contract law. The judges in the Inner House characterised their judgment as involving "well-settled" principles, rather than innovating on the law (as noted by Lord Osborne). Nevertheless these statements provide a useful guide to anyone faced with the task of analysing a situation of breach. Read more... |
| The way in which agency is established in Scots law is an issue lacking clarity. Lord Bannatyne’s decision in the case of Rodewald v Taylor, 18 Jan 2011, [2010] CSOH 05, available at http://www.scotcourts.gov.uk/opinions/2011CSOH5.html, provides some interesting food for thought on this issue. Read more... |
| Like the old case of Allen v Hyatt (1914) 30 TLR 444, the recent case of Park's of Hamilton's (Holdings) Ltd. v Campbell [2011] CSOH 38; 2011 G.W.D. 8-196 is one of those unusual cases where it was held that a director of a company owed fiduciary duties under the law of agency to the shareholders of the company. Section 170(1) of the Companies Act 2006 clearly states that a director owes the duties adumbrated in sections 171 to 171 of the Act to the company and not any individual shareholder. However, in Park’s of Hamilton (Holdings) Ltd. v Campbell, the director was held to be an agent of each individual shareholder of a company when he sent a letter to each of the shareholders indicating that a third party had made an offer for the entire share capital of the company and asked them to sign a power of attorney in his favour enabling him to sign the SPA on their behalf. Since the director was an agent of the shareholders, he owed them fiduciary duties under the common law (not sections 171 to 177 of the Companies Act 2006) and the main issue in the case was whether the director had breached the fiduciary duty not to make a personal profit out of his agency. The shareholders contended that the terms of a consultancy agreement to be entered into between the director and the company post-completion relating to his remuneration had been concealed from them. The director's defence was that there had been disclosure of the personal profit under the consultancy agreement to the shareholders and that the latter had provided informed consent. The director based these assertions on the fact that the solicitors of the company were aware of the terms of the share purchase agreement and consultancy agreement and that that their knowledge could be imputed to each of the individual shareholders since the terms of engagement of the solicitors expressly provided that they were acting as agents of the shareholders in respect of the sale of their shares in the company. Read more... |
| This Outer House case ([2011] CSOH 45)provided Lord Hodge with the opportunity to summarise the rules of interpretation of commercial contracts in Scots law. Read more... |
| This case was decided on 11 January 2011 in Edinburgh Sheriff Court, A1523/09 and can be accessed here: http://www.scotcourts.gov.uk/opinions/A1523_09.html. Sheriff Holligan's judgment contains thoughtful analysis of the law of agency in Scotland, in particular of the concepts of actual and apparent/ostensible authority. Read more... |
| Despite high profile and damaging data losses in previous years, it seems that data controllers are still not ensuring compliance with their obligations under the Data Protection Act. Read more... |
| On 23 December, the Scottish Government launched its "Identity Management and Privacy Principles". These principles are intended to "help ensure that respect for privacy is central to the way public services prove identity or entitlement." As this rationale makes clear, the Principles only extend to public sector bodies - often the ones that handle an individual's most private or sensitive data. Read more... |
| The Information Commissioner has confirmed (again) that data protection laws do not prevent parents taking photographs at their child's nativity play. The myth that the Data Protection Act is a bar to proud parents taking pics has been circulating for some years, and typically pops up twice a year, in relation to summer sports days and Christmas plays. Read more... |
| In October 2009, Christopher Graham, the newly appointed Information Commissioner, addressed a data protection conference in Edinburgh and assured the audience that he was prepared to supplement the traditional "carrot" approach to data protection enforcement, by bringing the "big stick" out of the cupboard. The message was clear: those found responsible for some of the worst breaches of the Data Protection Act 1998 could in future expect to face tougher enforcement action. Read more... |
| When the provisions of sections 170 to 178 of the Companies Act 2006 were introduced and codified the law of directors' duties, they were heralded by the Government as representing a long overdue modernisation of the applicable law. In particular, commentators pointed to section 172 of the Act which enjoined directors to take decisions in a way which would promote the success of the company for the benefit of the members as a whole, pursuant to which they were compelled to consider the interests of stakeholder constituencies such as suppliers and employees. Read more...Comments (0) |
| Last week the Institute of Law in Jersey hosted a conference on Contract Law (the programme is here). The conference was considering contract law generally, and the possibility of codification of the area. Among the speakers was Lord Hope who delivered a fascinating speech on "the role of the judge in developing contract law", published this week on the website of the Supreme Court of the United Kingdom. His comments are of particular interest in Scotland where the Scottish Law Commission is turning again to contract law in its eighth programme of law reform. The SLC project will re-examine various unimplemented reports on formation of contract, interpretation in private law, and remedies for breach of contract in the light of the publication of the Draft Common Frame of Reference. Read more...Comments (0) |
| The Inner House has decided the case of Aberdeen City Council v Stewart Milne Group Ltd in favour of the Council. The opinion of the Court, delivered by Lord Drummond Young, can be found here: Read more...Comments (1) |
| The Edinburgh Centre for Commercial Law were delighted to host an EU Procurement Law Conference in conjunction with Burness LLP on the 8th of October 2010. The conference was extremely well attended with well in excess of 100 delegates, ranging from local authorities, the NHS, Universities, construction and development companies, law firms and many other organisations. Read more...Comments (0) |
| Copland v Brogan 1916 SC 27 was the subject of a (not entirely serious) blog entry in this blog recently, see Read more... |
| Vale Lord Bingham of CornhillParker Hood 17 September 2010 14:34 The members of the Edinburgh Centre for Commercial Law were sad to learn of the very recent passing of Lord Bingham of Cornhill, KG, the former Senior Law Lord, who was also a member of the Centre. Read more...Comments (0) |
| Jaap Baaij from the University of Amsterdam visited the ECCL this week. Jaap is, together with David Cabrelli and Laura Macgregor, an editor of an interpretation project for the Common Core of European Private Law. More information on the Common Core project can be found here: http://www.common-core.org/. The results of the project have been published by Cambridge University Press in their series Cambridge Studies in International and Comparative Law: http://www.cambridge.org/uk/browse/browse_all.asp?subjectid=302. Read more... |
| New edition of Woolman on ContractLaura Macgregor 07 September 2010 13:22 This month sees the publication of the 4th edition of Woolman on Contract by the Edinburgh Centre for Commercial Law's Dr Gillian Black. The author has carried on the tradition of this work, explaining in the preface, "I have sought to maintain its character as a concise introductory work, by focussing on material developments and avoiding change for change's sake." Dr Black has taken the opportunity to tackle some of the issues in contract law which remain problematic, such as the ongoing saga of interpretation (including discussion of Luminar Lava Ignite Ltd v Mama Group plc [2010] CSIH 1) and the remedy of retention (Inveresk v Tullis Russell Papermakers Ltd [2010] UKSC 19). It's great to see the return of this useful book. Read more... |
| "Agent" is a slippery word. Sometimes it means that a representative has been appointed to perform a legal act, and that legal consequences are intended. At other times a less formal, more limited relationship may have been intended by the parties. Whether an agency relationship exists is an issue of interpretation. One must look to the intentions of the parties. Recent cases have highlighted the doubt that surrounds the rules of constitution of agency (see Lord Drummond Young's judgments in Whitbread Group plc v Goldapple Ltd 2005 SLT 281; Laurence McIntosh Ltd v Balfour Beatty Group Ltd and the Trustees of the National Library of Scotland, [2006] CSOH 1907; John Stirling t/a M & S Contracts v Westminster Properties Scotland Limited [2007] CSOH 117; [2007] BLR 537)). Read more... |
| The Edinburgh Centre for Commercial Law was delighted to welcome Professor Irene-Marie Esser to Edinburgh Law School on the 2nd of August 2010. Irene-Marie Esser is a Professor at the University of South Africa (UNISA) and lectures in Entrepreneurial Law, Company law and Corporate Governance to undergraduate and postgraduate students. Professor Esser is an active researcher in the areas of company law, mostly on corporate governance issues like directors’ duties and stakeholder protection and has published widely in these fields at a national and international level. Read more... |
| The service by a tenant of a break notice in the context of a commercial lease is a tricky business. Notice clauses are complex, and it is often not clear which of the requirements are mandatory and which are not. A recent decision of Lord Hodge in the Outer House, Batt Cables plc v Spencer Business Parks Ltd [2010] CSOH 81, considers this issue, and contains interesting arguments relating to agency law. Read more... |
| Today sees the publication by the Law Commissions of England and Wales and Scotland of another joint Issues Paper (No. 8) on insurance contract law (available here: http://www.lawcom.gov.uk/docs/issues8_brokers-liability.pdf). Under scrutiny this time is the rule contained in s53 of the Marine Insurance Act 1906, subsection 1 of which, in effect, makes a broker directly liable to the insurer for payment of the premium, whilst subsection 2 provides the broker with a lien over the insurance policy, allowing it to recover any money it is owed by the policy holder. Although this point is not entirely free from doubt, the section seems only to apply to cases of marine insurance. As with many aspects of the law of insurance, this area of law is ripe for reform, and it is difficult to disagree with any of the recommendations contained in the Issues Paper. Read more... |
| style="margin: 0cm 0cm 0pt" class="MsoNormal">A new era for arbitration in Scotland was celebrated on 23 June 2010 in the Playfair Library of the University of Edinbugh. The event was an international arbitration conference entitled: the Arbitration (Scotland) Act 2010: A New Beginning. Read more... |
| One of the quirks of data protection law is that it rarely arises in litigation as an issue in its own right: in many cases, the point at stake concerns the interaction between data protection and freedom of information. (The point where "two worlds collide", in the words of Professor Laurie and Dr Gertz, in a recent Edinburgh Law Review case note.) One reason for this is that a freedom of information request (under the Freedom of Information Act 2000 or the Freedom of Information (Scotland) Act 2002) can be turned down where the data sought constitutes "personal data". Under the Data Protection Act 1998, personal data is data which identify the individual, either alone or in conjunction with other information held (or potentially held) by the data controller. Read more... |
| Insurance Law Reform SeminarParker Hood 08 June 2010 22:15 On Wednesday, 2nd June, 2010, a seminar on “Insurance Contract Law: Damages for Late Payment and the Insurer's Duty of Good Faith” took place in the Raeburn Room, at the University of Edinburgh. The seminar was jointly hosted by the Scottish Law Commission, the Edinburgh Centre for Commercial Law and the Centre for Private Law. Read more...Comments (0) |
| Security over moveable propertyScott Wortley 01 June 2010 10:53 The Scottish law Commission in its eighth programme of law reform has committed itself to a review of the Scottish law of security over corporeal moveable property, and a look at securities over, and assignation of incorporeal moveable property. This is a development from the earlier proposal in the seventh programme of law reform where the assignation of incorporeal moveable property was identified as a subject for reform, work to commence following the completion of the substantial project on land registration. Read more...Comments (1) |
| On Friday 21 May the second ScoLaR conference took place in Edinburgh Law School. The organisers should be congratulated for organising an excellent, highly enjoyable conference. Read more...Comments (2) |
| On 6th April, 2010, new powers were given to the Information Commissioner (the guardian of personal data), to impose ‘monetary penalties’, on data controllers, who do not comply with ‘the Data Protection Principles’, pursuant to the new sections of the 1988 Act: ss 55A – 55D of the Data Protection Act 1998. Read more...Comments (0) |
| The Commercial Agents Regulations, like any piece of legislation, can only be fully understood once its bare terms are “fleshed out” with case-law. That process continues in the U.K., as is illustrated by the English case of Clarmoda Ltd v Zoomphase Limited [2009] EWHC 2857 (Comm), decided on 13 November 2009. Read more...Comments (0) |
| The English case of Nayyar and ors v Denton Wilde Sapte and Gauri Advani [2009] EWHC 3218 (QB), decided in December 2009, provides interesting reading for law firms whose solicitors might be tempted to engage in business activities which depart from the usual advisory role to be expected of a solicitor. More broadly it is a useful illustration of the application of the legal ideas of the apparent and implied authority of an agent. It exhorts us to remember that law firms are not necessarily liable for the activities of their employees only when the firm considers a client to be a client, all necessary form-filling having been completed. A firm’s liability can arise before the point at which the firm has been formally retained by the client. Read more...Comments (0) |
| The Outer House case of Credential Bath Street Limited v Venture Investment Placement Ltd from 2007 illustrates the ongoing potential for divergence between approaches to interpretation of contracts north and south of the border. Read more...Comments (0) |
| The third Edinburgh Centre for Commercial Law Annual Lecture was given by the Rt Hon Lord Hope of Craighead on 12 March 2010. His title was: "Taking the case to London: maybe it's not all over after all." Read more...Comments (0) |
| World Consumer Rights Day 2010Gillian Black 15 March 2010 13:32 Today is World Consumer Rights Day, and the theme for 2010 is "our money, our rights". Consumers in the UK now benefit from wide-ranging protection (which is predominantly statutory), including the Sale of Goods Act 1979, the Consumer Credit Act 1974, and a raft of Regulations implementing European Directives. The most recent consumer protection developments in the UK have been those to reflect Europe-wide concerns, and perhaps the most notable is the Unfair Commercial Practices Directive, implemented as the Consumer Protection from Unfair Trading Regulations. Read more...Comments (0) |
| The decision of the Court of Appeal in Kulkarni v Manor Credit (Davenham) Ltd [2010] EWCA Civ 69, dealt with the issue of the passing of property under s 18, r 5 of the Sale of Goods Act 1979, in order to decide whether the purchaser, who had been the subject of fraud, could avail himself of s 27 of the Hire-Purchase Act 1964, which, as the Court points out [para 1], constitutes an exception to the nemo dat rule. Read more...Comments (0) |
| A recent ruling of the Advertising Standards Authority suggests that businesses which trade online should think twice about circulating printed advertisements in certain situations. Where an online business has variable pricing, which reacts to changes in supply and demand in the marketplace, it will be misleading to circulate hard copy advertising material which advertises those goods/services at a fixed price if the fixed price is not available for the full duration that the ad is in circulation. Read more...Comments (0) |
| In March 2009 the Edinburgh Centre for Commercial Law held a book launch to mark the publication of The Unauthorised Agent: Perspectives From European and Comparative Law (Cambridge University Press, 2009). This book was a comparative project, co-edited by the Centre's Laura Macgregor and her Dutch colleague, Danny Busch of the University of Nijmegen. This book has now been referred to by the Attorney-General in a significant case on apparent authority in the Dutch Supreme Court. Read more...Comments (0) |
| The international private law relating to tangible moveable property was described by Cheshire in 1952 as “the most intractable topic in English private international law.” 50 years later Dr Janeen Carruthers, now one of the editors of Cheshire’s majestic textbook on international private law, states in her The Transfer of Property in the Conflict of Laws (para 6.05), “The complexity of the rules concerning chattels , however, is surpassed by that concerning the rules relating to intangible moveable property”. Read more...Comments (0) |
| The Inner House has decided an interesting case on the incorporation of standard terms and on contract formation generally. The case is Baillie Estates Ltd v Du Pont (UK) Ltd [2009] CSOH 95, decided by Lords Clarke, Carloway and Sir David Edward QC, with Lord Clarke delivering the opinion of the court. Read more...Comments (0) |
| Incorporation of standard termsLaura Macgregor 29 January 2010 16:44 When seeking to understand the UK's complex legislation governing unfair terms, the need to incorporate standard trading terms and conditions into a contract is often overlooked. The recent case of C R Smith Glaziers (Dunfermline) Limited v Toolcom Supplies Limited and Fit-Lock Systems Ltd [2010] CSOH 7 reminds us of the importance of this step in the legal analysis. Read more...Comments (0) |
| Next Monday 1st February 2010 is pleased to welcome Joan Cradden, from Brodies LLP. She will speak on "The furore over banker's bonuses and its influence on the development of remuneration policies and the employment contract" in lecture theatre 175, Old College. The event begins at 6 pm and will be followed by a wine reception. All are welcome to attend. Read more...Comments (0) |
| An entry in this blog dated 26 June 2009 drew attention to the case of Halifax v DLA Piper [2009] CSOH 74. Although the main focus of that case was the potential liability of an agent acting on behalf of a non-existent principal, readers may recall that Lord Hodge left open the possibility of a further action between the same parties on the grounds of breach of warranty of authority. Sadly (for those of us eagerly anticipating such judgments) the Halifax case has now been settled. Nevertheless, breach of warranty of authority has again been discussed in the Outer House in Frank Houlgate Investment Company Limited v Biggart Baillie LLP [2009] CSOH 165. Read more...Comments (0) |
| The paper delivered by Steven Walker, Advocate at the Edinburgh Centre of Commercial Law seminar on "The Renaissance of Scottish International Arbitration" on 24th November can be read in full here. Our many thanks to Steven for allowing us to post this to our website. Read more...Comments (0) |
| Banking Law: Recent DevelopmentsParker Hood 07 December 2009 19:08 This blog deals with recent developments in banking law on two fronts:
(a) the “regulatory” front, in which we now have a new regime of regulation, and
(b) the case law front, with the (inevitable) Supreme Court judgement in the “bank charges” case. Read more...Comments (1) |
| A decision of Sheriff Principal Young in Aberdeen Sheriff Court has provided some food for thought on statutory implied terms in contracts for the supply of goods and services. The case is Aberdeen Joinery Windows and Doors Limited v Salaam, decided on 16 October 2009. Read more... |
| The decision of the Privy Council in A-G of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988 – a case kindly drawn to the attention of this blogger, which might otherwise have “slipped under the radar” – provides guidance, and the latest judicial thinking, at a very senior level, on the construction of articles of association, and the implication of terms into them, although the decision will have general application in both areas. Read more...Comments (1) |
| Scottish Privacy ForumGillian Black 23 October 2009 17:20 The inaugural meeting of the Scottish Privacy Forum took place today in Edinburgh. Initiated by a number of data protection and privacy experts in Scotland, it was sponsored by the Information Commissioner's Office and designed to "to facilitate the exchange of information and good practice between the different sectors (private, voluntary and public) and key individual stakeholders with an interest in the processing of personal data in Scotland." Read more... |
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| Dreaming of my holidays...David Cabrelli 12 October 2009 14:31 And now for some employment law - and in particular, the interpretation of the provisions of the Working Time Regulations 1998 which govern workers' annual holiday entitlements. In a recent decision of the European Court of Justice, it was ruled that where a worker is ill during a period which had been allocated as annual leave, that worker will be entitled to receive his or her annual leave at a time other than that which has originally been scheduled, i.e compensatory holidays for the days in which he/she was ill during the original holidays. Read more...Comments (0) |
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| Football agents: fiduciary dutiesLaura Macgregor 25 September 2009 13:35 Imageview Management Ltd v Kelvin Jack [2009] EWCA Civ 63, an English Court of Appeal case, decided earlier this year, provided the Court with an important opportunity for analysis of the fiduciary duties of an agent. Read more...Comments (0) |
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| The Scottish Government has launched a new consultation on Identity Management and Privacy Principles. The consultation is part of a move to regulate the collection and use of personal data by public organisations, and includes a focus on risk management and accountability. Read more...Comments (0) |
| The First Minister announced the SNP government legislative programme earlier today. Unusually there are two bills of relevance to commercial lawyers. Read more...Comments (0) |
| A significant issue in agency law is the extent of the agent’s implied authority. Case-law has defined the implied powers possessed by particular types of agent, for example, partners, solicitors or architects. In this way, transactions can proceed quickly, without the need for the principal to provide express, detailed instructions. Read more...Comments (0) |
| Given the constitutional reforms of recent years all lawyers must have some familiarity with matters traditionally viewed as public law. The incorporation of the European Convention on Human Rights has touched a number of areas (in early cases in scotland primarily protecting the rights of corporations) The devolution settlement established by the Scotland Act 1998 has caused a degree of complexity for commercial lawyers. That complexity is inherent in the uncertain boundaries of commercial law. Read more...Comments (0) |
| Part 11 of the Act is divided into provisions which apply to England and Wales (ss. 260-264 of the Act) and provisions which apply to Scotland only (ss. 265-269 of the Act). In terms of the Scottish procedure, a shareholder must first make an application for leave to raise derivative proceedings by presenting a petition to the Outer House of the Court of Session. The application for leave procedure is split into an ex parte (section 266(2)) and an inter partes stage (section 266(4) and (5)). The former does not involve a hearing with the parties present, whereas the latter does. Read more...Comments (0) |
| On 8 June in this blog David Cabrelli helpfully summarised the projects which the Scottish Law Commission were intending to include in their Eighth programme of law reform. He also noted the suggestions they had received. Today is the last day for comments. This blogger posted some comments today, one of which is reproduced below (comments do not appear immediately on the SLC site). For the rest of us, there's still time to upload a request for the SLC to consider your "pet hate" in Scots Law! Read more...Comments (0) |
| BANKING ACT 2009 AND FAILING BANKS Read more...Comments (0) |
| A recent judgment by Lord Hodge has provided a brief insight into the role of email disclaimers in the process of contract formation. Read more...Comments (0) |
| New Scottish Agency CaseLaura Macgregor 26 June 2009 14:47 Recent Scottish cases on agency law are few and far between. Halifax Life Limited v DLA Piper llp [2009] CSOH 74, a recent decision from Lord Hodge, sheds light on what can be a significant practical issue: the effect of acting on behalf of a non-existent principal. What follows is some initial thoughts on the case – a more considered blog post/article may follow in due course. Read more...Comments (0) |
| The UK's new Information Commissioner, Christopher Graham, takes up his post on 29 June, succeeding Richard Thomas in the role. Read more...Comments (0) |
| The Scottish Law Commission ("SLC") is currently consulting on the projects to be included within its Eighth Programme of Law Reform. The SLC's intention is to submit the Eighth Programme to Scottish Ministers for approval by the end of 2009. Read more...Comments (0) |
| On Tuesday 12th May, 2009 the Edinburgh Centre for Commercial Law was delighted to welcome recently retired Law Lord the Rt Hon Lord Hoffmann to deliver the Centre's annual lecture in Old College. Read more...Comments (0) |
| The law of diligence in Scotland has been substantially altered with the coming into force of Parts 5 and 10 of the Bankruptcy and Diligence etc (Scotland) Act 2007 on 22nd April 2009. Read more...Comments (0) |
| Langstane Housing Association Ltd. v Riverside Construction (Aberdeen) Ltd., Ramsay & Chalmers and others [2009] CSOH 52 is the first case dealing with the Unfair Contract Terms Act 1977 ("UCTA") to be decided by the Court of Session for a number of years. That, of itself, makes it worthy of some comment. In Langstane, Lord Glennie decided a number of points based on sections 16 and 17 of UCTA. The section 16 point considered whether a 'Net Contribution Clause' in a contract between an owner of a building and a consulting engineer was a term which sought to exclude or restrict the latter's liability for breach of duty. The second issue concerned whether the owner could be deemed to be a 'customer' of the consulting engineer for the purposes of section 17 of UCTA where the contract concluded between the owner and the consulting engineer incorporated provisions from a set of standard terms drawn up by the Association of Consulting Engineers. Read more...Comments (0) |
| With less than a month to go before the annual Edinburgh Centre for Commercial Law lecture, those in the Centre are eagerly anticipating the opportunity to hear Lord Hoffmann’s thoughts on remoteness of damages in contract (the event is ticketed, and those wishing to obtain a ticket should contact myra.reid@ed.ac.uk). Read more...Comments (0) |
| The Centre was delighted to welcome Jonathan Barne, advocate, on Thursday 26 March, to give a talk on derivative actions in company law. Read more...Comments (0) |
| The study of the law of administration in the LLM classes on the law relating to debt and insolvency and company law has thrown up an interesting - surely unintended - quirk in relation to the Scottish floating charge holder. Read more...Comments (0) |
| Data protection in actionGillian Black 06 March 2009 12:01 A press release from the Information Commissioner confirms that, for the first time, the ICO has used its powers under the Data Protection Act 1998 to serve an Enforcement Notice with a seven day compliance condition. Read more...Comments (0) |
| The Edinburgh Centre for Commercial Law was delighted to sponsor the launch of a book co-edited by our very own Laura Macgregor on Tuesday 3rd March in Old College. The book is entitled 'The Unauthorised Agent: Perspectives from European and Comparative Law' and was co-edited with Danny Busch, a senior research fellow in the Business and Law Research Centre, University of Nijmegen and Advocat/Attorney-at-Law at the Dutch commercial law firm of De Brauw Blackstone Westbroek. Read more...Comments (0) |
| Two recent developments have both raised the issue of whether or not a seller can impose a charge on consumers for any use of goods that has been enjoyed by the consumer, prior to returning the goods in question. Where, for example, a purchaser takes delivery of a car which breaks down after two weeks, as a result of a fault which renders the car not of satisfactory quality under section 14 of the Sale of Goods Act 1979, the purchaser is entitled to rescind the contract. The question then arises as to whether the seller can nevertheless make a charge for the use of the car that the consumer has enjoyed for the two week period prior to rescinding. Read more...Comments (0) |
| On 23 January 2009 the (English) Law Commission published its Consultative Report on the Illegality Defence (available on www.lawcom.gov.uk/illegal.htm). This report has been long awaited, the original consultation papers being published in 1999 (Illegal transactions: the effect of illegality on contract and trusts Consultation Paper 154) and 2001 (The illegality defence in tort Consultation Paper 160). According to the Law Commission Press Release (www.lawcom.gov.uk/docs/illegality_press_release_plus_summary.pdf) the Commission has departed from its original recommendation which envisaged the introduction of a structured discretion for the courts. Clearly, this was not attractive to all those who responded. Rather, the Commission now appears to advocate a more ad hoc approach. Quoting from the press release: Read more...Comments (0) |
| On Saturday 10th January 2009, Laura Macgregor gave the keynote presentation at a symposium which celebrated the publication of her book "The Unauthorised Agent: Perspectives from European and Comparative Law" which she co-authored with Danny Busch. The symposium was hosted by the international law firm De Brauw Blackstone Westbroek where Danny Busch works as a practising lawyer. The symposium and book launch also acted as an 'away day' event for members of the Edinburgh Centre for Commercial Law who attended to support Laura. Read more...Comments (0) |
| The decision of Lord Emslie last week in Gibson v Royal Bank of Scotland [2009] CSOH 14 is the latest in a line of cases relating to the so-called "offside goals rule". The case law in this area stretches back to the 1580s (Stirling and White v Drummond (1582) Mor 1689) but until relatively recently the cases had not been subject to detailed systematic analysis. Read more...Comments (0) |
| Marquess of Aberdeen and Tremair v Turcan Connell [2008] CSOH 183 provided an opportunity for analysis of the problem known as a “legal black hole.” This phenomenon arises where loss caused through a breach of contract falls not on the contracting counter-party, but rather on a third party. The English courts developed a potential solution to the problem in cases such as St Martin’s Property Corporation v Sir Robert McAlpine and Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 and Darlington Borough Council v Wiltshier Northern Limited [1995] 1 WLR 408. Focussing on the problem itself, and explaining it using a construction context, owner of a building (O) engages builder (B) to carry out works on a building. Those works are performed negligently, although that fact is not immediately apparent. The building is then sold, possibly several times. Rights under the building contract are not assignable without consent of the builder. When the loss becomes apparent, it falls on a subsequent owner (SO) who finds the building worth less than he anticipated. However, SO cannot sue the builder, having no rights under the building contract. Nor does he have an action in delict against B. O, who has a contract with B and could, in theory, sue him, has suffered no loss. The lack of congruence between loss and right to sue has led the courts to describe these situations as legal black holes. Read more...Comments (1) |
| I attended the second annual International Conference on Computers, Privacy and Data Protection was held in Brussels last week, hosted by Vrije Universiteit Brussel. The conference was well attended by a wide range of lawyers, academics, policy advisors and DP officers. Read more...Comments (0) |
| The Edinburgh Centre for Commercial Law has been set up by five members of The School of Law, Edinburgh University. The Centre is a research centre and its principal focus lies on the development of commercial law in Scotland. The Centre stages different types of events with this focus in mind, such as academic seminars, book launches and lectures from UK and international legal experts. One particular aim of the Centre is to foster closer links within the Scottish legal community, bringing together academics, legal practitioners and the judiciary. The five original members are able to do so through the provision of continuing professional development training to UK law firms, and through collaborative writing projects. Read more...Comments (0) |
