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Online auctions – distance selling

The fastest-growing part of the art market is online. Indeed, virtually all the major auction houses now operate online auctions (some are totally online, whereas others merely stream physical auctions). But, the distance selling laws pose major problems for such businesses, giving ‘consumers’ rights that they do not always appreciate they have.

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Keyword ads – trade mark

A recent case illustrates the dangers of buying keyword ads on Google in the name of a competitor – especially if that competitor has a trade mark.

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HMRC – reasonable excuse

HMRC cannot impose a ‘penalty’ if the taxpayer took ‘reasonable care’ to avoid an inaccuracy. The general rule is that if the taxpayer takes professional advice then that will be a reasonable excuse.

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Grey goods – criminal

Selling ‘grey goods’ can be a criminal offence (under Trade Marks Act 1994).

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Financial advice – negligence?

In the medical/clinical negligence world the most important decision of recent years was Montgomery [2016], which overruled the long-standing principles established in Bolam [1957]. Under Bolam a medical professional’s actions were judged by asking whether that professional ‘was acting in accordance with a practice of competent respected professional opinion’. In other words, if a reasonably competent practitioner would have taken the same approach, then there would not have been negligence.

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Contract – or counter-offer?

When do negotiations turn into a binding contract? If the other side responds with a counter-offer, does that form the basis of the contract?

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HMRC – offshore accounts

HMRC has offered (another) last chance to come clean about offshore money (it is called a ‘requirement to correct’). The scheme calls for voluntary disclosure by September 2018, but there are severe penalties – 200% of the tax, plus the tax due and interest. In addition, there is currently a proposal for an additional 10% asset-based penalty, plus there will almost certainly be publication on the list of deliberate tax defaulters. Note that there is no undertaking by HMRC that they will not prosecute.

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Companies Act 2006 – no limited liability?

CA 2006 came into force in October 2009 but there is a danger that its provisions have inadvertently resulted in some limited companies becoming unlimited.

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Variation – anti-oral clauses

This year has seen a series of cases in which the courts have held that a ‘no variation’ clause in a contract is not binding. What we see is a clear intent on the part of the courts that contractual agreement should be eroded in favour of ‘party autonomy’ and a greater flexibility:

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Freedom of information – vexatious

There is a general right of access to information held by a public body (FoI 2000). But, this does not apply if a request is ‘vexatious’ (s14). However, the Act does not define ‘vexatious’ although it is made clear that the burden is very high to show that the request is indeed vexatious.

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Page 7 of 40

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Disputed will – guidance; procedure
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MoJ – IT meltdown
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Many litigators are no doubt all too aware of the Ministry of Justice (MoJ) January 2019 IT failures that hit the delivery of frontline legal services in some courts.  Read more...
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The SC has widened the scope of the service of statutory notices. Read more...
Part 36 offers – appropriate
Wednesday, 13 February 2019
Part 36 of the CPR allows a claimant or defendant to make an offer of settlement before trial. If the offer is not accepted and the opposing party does not meet the offer at trial, the court may... Read more...
Noise nuisance – liability?
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A recent High Court decision has confirmed that L is not liable for nuisance caused by its T merely because L does not take steps available to prevent the cause of the nuisance, even when L knows... Read more...
RICS – service charges
Wednesday, 13 February 2019
We noted the RICS Code of Practice on service charges in our October 2018 issue, p19; the ‘Service Charges in Commercial Property (1st edition)’ comes into force on 1 April 2019. Read more...
Notice of severance – rectification?
Wednesday, 13 February 2019
A recent case reminds practitioners of the importance of ensuring that a notice of severance accurately records all of the titles intended to be severed. Read more...
Children – parental responsibility; removal of
Wednesday, 13 February 2019
In what circumstances might the court order the removal of PR from the father? The author comments on a recent case which involved a unique set of circumstances justifying the removal of PR.  Read more...
Incompetence – not discrimination
Wednesday, 13 February 2019
The CA has held that an incompetent process does not amount to discrimination. Read more...
Sentencing – contempt of court
Wednesday, 13 February 2019
The Court of Appeal has ordered a new trial in relation to a claimant remanded to prison overnight for discussing evidence in a civil case.  Read more...

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