The Practical Lawyer


Copyright – private copying

Private copying is (once again) unlawful.

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Consumers – online dispute resolution

 A pan-EU electronic platform will come into operation on 15 February 2016. It provides an online dispute resolution service for online shops and their ‘consumer’ customers.

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Logbook loans – bills of sale

 A bill of sale can be taken over any item. By far the most common these days is the logbook loan (about 50,000 are taken each year).

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Penalties – commercial cases

This flowchart gives a simple guide to how the new penalty rules should apply in complex commercial damages cases. Bear in mind that property transactions will often be more straightforward. 

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Contract – time of essence

   If ‘time is of the essence’ then even a minor deviation from the agreed timescales will amount to a fundamental breach of contract (allowing the innocent party to terminate the contract). But, the general position is that time is not generally considered to be of the essence unless (i) it is expressly agreed in the contract, or (ii) it is implied by the contract, or (iii) time is subsequently made ‘of the essence’ by the innocent party sending a notice requiring the defaulter to complete performance within a specified (‘reasonable’) time.

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Procurement – publishing documents

One of the major changes under the Public Contracts Regs 2015 is the obligation to offer unrestricted and full direct access to the ‘procurement documents’ from the time a notice is published in the OJEU commencing the procurement.

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Administration – pre-packs

The procedures on pre-pack administrations have been revised (as from 1 November 2015) as a result of a revised statement of insolvency practice (SIP 16).

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Administration – safeguarding ‘essential supplies’

IA 1986 prevents suppliers of essential supplies (such as gas and electricity) from holding insolvent companies to ransom by demanding payment of outstanding invoices as a condition of continued supply. Typically, such suppliers will have a clause in the supply contract that allows termination if the customer becomes insolvent, or if there are specified indicators of insolvency (eg enters into administration or goes into a CVA). The problem, of course, is that the administrator may want the company to keep trading so the business can be sold, and its assets sold for the maximum price. Hence the IA exception for ‘essential supplies’.

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Apple – apps

Apple has a standard developer agreement for iPhone apps. The reality is that developers have no choice but to accept the terms offered by Apple, and it is worth making the point that they are widely regarded as extremely one-sided. Thus, a client entering into such an agreement should, at the least, be aware of the potential downsides.

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IP – audit clause

Audit clauses are an important tool in IP agreements, since they allow the licensor to check that the licensee is complying with the terms of the licence agreement. In particular, it allows the licensor to check the correct royalties are being paid.

However, it is important to have a widely worded audit clause. This is an example of one that was not sufficiently wide:

‘Permit any duly authorised representative on reasonable prior notice to enter into any of its premises where any copies of the database are used, for the purpose of ascertaining that the provisions of this Agreement are being complied with.’ 

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