| 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... |
| 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... |
| 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... |
| 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... |
| 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... |
| 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... |
| |
| 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) |
| |
| 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) |
| |
| 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 (0) |
| 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) |
