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Insolvency – assignment of claim

Administrators, trustees in bankruptcy, and liquidators can assign a claim or course of action belonging to the insolvent party. But, in any assignment there is a potential risk of a non-party costs order being made if the claim is ultimately unsuccessful. Ideally, therefore, an indemnity will be obtained from the person the claim is being assigned to.

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CGT – entrepreneurs relief

An important CGT relief is provided via entrepreneurs relief – but that is lost if the tax-payer’s holding falls below 5%.

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Contract – duty of good faith?

To what extent can you imply a duty of 'good faith' into a commercial contract? The position under English law is that contracting parties do not owe a general duty of good faith to each other (unless there is a fiduciary relationship). This is different from the approach in many civil law jurisdictions (where a duty of good faith is included in the Civil Code). In Yam Seng [2013] a High Court judge did imply a general duty of good faith into a particular contract, but judges since then have tried to limit the effect of that case. In effect, a duty of good faith will not be implied unless a contract would otherwise lack commercial and practical coherence.

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Contract – implication or interpretation?

There is a fundamental difference between implying an implied term into a contract, and interpreting an express term of that contract. The rules for implying are stricter than those for interpreting.

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Bank reference – third party liability

The Playboy casino used an agent to get a bank reference for a gambler before granting him credit. The bank that gave the reference was unaware that it would be passed to, and relied on, by Playboy. In due course, the gambler’s cheques to Playboy (worth £1.25m) bounced. Accordingly, Playboy sued the bank for negligent misstatement (ie a defective credit reference).

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Website injunctions – costs

A website-blocking order is typically made against an ‘innocent’ ISP, requiring it to block a counterfeit website.

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GDPR – consent

GDPR does not fundamentally change the situation set out in DPA 1998 as regards personal data processing (including marketing).

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Sole survivor – joint attorneys

The LR has clarified that a transfer executed by joint attorneys on behalf of a sole surviving proprietor will not satisfy a Form A restriction.

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Confidentiality – ‘disclosure’ and ‘use’

A properly drafted confidentiality clause should cover both ‘disclosure’ of the confidential information, and its ‘use’.

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Decision-making – commercial aims?

Suppose a party has contractual rights; are there any limitations on how those rights can be exercised?

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