The Practical Lawyer


Consumer Rights Act – major change

   It is goodbye to some old friends: Sale of Goods Act 1979, UCTA 1977, Unfair Terms Regs 1999, Supply of Goods and Services Act 1982, and Sale and Supply of Goods to Consumers Regs 2002. The effect of Consumer Rights Act 2015, largely in force since 1 October 2015, is to largely replace all of these in consumer/trader transactions.

A consumer is an individual ‘acting for purposes wholly or mainly outside that individual’s trade, business, craft or profession’. This is a wider definition of consumer than the previous one, and businesses should be aware that the definition may include individuals who enter into a contract for a mixture of business and personal reasons. The term trader means ‘a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or the trader’s behalf’ (ie it specifically includes agents). 

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Safe Harbor – data storage

The European Court of Justice’s decision that the EU/US ‘Safe Harbor’ arrangements are invalid has enormous consequences for data holders.

Under EU data protection law there is a general ban on transferring data outside the EEA unless the foreign country has an ‘adequate level of protection’. As far as the US is concerned, the EC agreed in 2000 that there would be ‘adequate protection’ if US companies complied with provisions known as Safe Harbor.

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Flight delay – ‘extraordinary circumstances’

We all know that the rules on flight delay compensation are potentially very strict, and airlines such as Ryanair have gone to great lengths to avoid paying compensation. However, we now have a new European Court of Justice decision making it clear that the ‘extraordinary circumstances’ defence for airlines is extremely narrow. 

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Contract – ambiguity?

When interpreting a contract, the starting point is that you take the ordinary, natural and grammatical sense of the words used. Thus, if the language is unambiguous, then a strict interpretation should apply. Indeed, as Lord Neuberger has said, the court should be ‘very slow’ to reject the ‘natural meaning of a provision merely because it appears to have been imprudent’. 

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Insurance – non-disclosure

Rules on non-disclosure are very strict (although they will be relaxed from August 2016 when Insurance Act 2015 comes into force).

A good illustration of how the rules currently work is a case involving a super-yacht bought in 2007 for €13m. When her insurance was renewed in 2011, the declared value was again €13m, but two years earlier the insured had obtained a valuation of €7-8m, and he had been trying to sell for €8m.

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Security – failure to register

What is the effect of failing to register a security over property at Companies House?

For instance, suppose a company signs a legal mortgage over property which is then registered at the LR but is not registered at Companies House. Under CA 2006, if a certified copy of the security document (and the statement of particulars) are not delivered to Companies House within 21 days then the security will be void against a liquidator, administrator or any creditor of the debtor. In that situation, the security holder has two options.

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T&Cs – battle of the forms

How do you work out whether it is the buyer’s or seller’s terms and conditions that apply when a contract is made?


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Clubs – structures

The useful note from Charles Russell Speechlys summarises the various structures available for semi-professional and amateur sports clubs:

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Statutory demand – costs?

A creditor serves a statutory demand on a debtor. The debtor applies to have it set aside, and produces evidence that results in the creditor withdrawing the statutory demand. Who pays the debtor’s legal costs? 

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Construction – adjudication late claim

The Supreme Court has reached a highly unpopular decision on whether an adjudicator’s award (under the Construction Contract Regs 1998) can be challenged in the courts. The Supreme Court held that there is an inherent jurisdiction to do this, with a six-year limitation period applying. The problem is that this limitation period is longer than the limitation for the other party (who may therefore not be able to counter-claim).

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