CONTENTS 1–2 Website Contracts and Policies
Royal Wedding Memorabilia
Companies House - Change of Fees
Bribery Act 2010 - Guidance Released
3–4 Recent Cases 4
Corporate & Commercial News Summer 2011
Website Contracts and Policies Whether you have an established website, and are perhaps undergoing a review of its content, or you are setting up a new website from scratch, it is important to bear in mind the applicable policies and terms and conditions setting out the rules and standards which you will require visitors to observe when visiting your site. In so doing you should consider:
Acceptable Use Policy
membership application form requiring name and contact details)
This is usually prepared and considered in conjunction with terms
to enable you to supply goods or services or to contact users with
of website use and can form part of them. If a site contains features
such as interactive access (allowing users to upload content or
By having such a policy in place you:
information), the policy sets out the rules with which they must comply and the right of the owner to remove any unacceptable
◆ provide users of your site with reassurance as to how their
personal data will be used and handled;
material and manage access to the site. It will typically deal with issues such as defamatory statements and third party intellectual
◆ help to ensure compliance with data protection requirements.
If you have a website used by children or you collect sensitive personal
Terms of Website Use
These set out the terms upon which you permit access to, and use of, your site and are relied upon to: ◆ allow you to limit your potential liability to users of your site;
on your website if you collect personal data. ◆ prevent unauthorised access to the site;
Under the Privacy and Electronic Communications Regulations
◆ prohibit disclosure of personal security access information;
2011, from 26 May 2011 all website owners may only use “cookies” if the subscriber or user has consented to such use after having been provided with clear and comprehensive information about
◆ warn against unacceptable behaviour, eg hacking or introduction
the purposes of such processing.
◆ restrict any unauthorised reproduction of material on the site;
Website Contracts and Policies continued
Terms and Conditions of Supply
These are required if you deal with the sale and purchase of goods
◆ a description of how the online contract is formed;
via your site. They cover general commercial terms such as the
◆ consumers’ rights to cancel an online contract;
price of and payment for the goods. For contracts made at a distance, such as on the internet, there are other considerations to
◆ contracts with minors and customers outside the UK.
Royal Wedding Memorabilia In the build up to the Wedding it was hard not to miss retailers trying to cash in by selling memorabilia. Before it the Lord Chamberlain’s office published guidelines stating that souvenirs could bear approved photographs of the wedding couple, as well as Prince William’s coat of arms, provided that they: ◆ are of a permanent kind; ◆ incorporate wording, such as "To commemorate the marriage
of Prince William of Wales and Miss Catherine Middleton, 29th April 2011", to identify the commemorative function; ◆ are in good taste; ◆ are free from any form of advertisement; ◆ carry no implication of royal custom or approval.
Such guidelines are not legally enforceable and just indicate what is thought appropriate.
Companies House – Change of Fees
Bribery Act 2010 – Guidance Released The Bribery Act 2010 comes into force on 1 July 2011. Bribery takes
Companies House has
place essentially where a public official is offered or receives any
implemented changes to
undue reward in order to influence his behaviour in office. There is
some of its fees from 6th
a defence available to companies which can show that they had
April 2011 and has, in
adequate procedures in place to prevent bribery.
particular, raised their fees for paper filings. This is seen as a way to encourage people to file electronically, rather
The Secretary of State has now published guidance as to what are adequate procedures. It provides sample case studies and clarifies some areas of uncertainty, particularly in relation to corporate hospitality.
than in paper format. Most paper filings will be withdrawn from March 2013 as Companies House is to become a fully electronic registry.
A copy of the guidance can be found at: http://www.justice.gov.uk/downloads/guidance/making-reviewinglaw/bribery-act-2010-guidance.pdf
Recent Cases A Frustrating Contract
The Court of Appeal had to look at whether the set off clause was
A general principle in law is that where a party under contract
reasonable under the Unfair Contract Terms Act 1977. It held that
fails to perform its obligations it will be liable for damages.
the clause was reasonable on the basis that A had done business
However, where a serious event occurs which is both unexpected
with B over a considerable period of time and was fully aware of
and beyond the control of the parties and which will make
its terms of business.
performance of the contract in the changed circumstances
This case shows that courts are willing to uphold clauses that
fundamentally different from performance under the contract
exclude liability under standard terms and it is therefore important
the parties originally entered into, a contract can become what is
for businesses to know whether certain exclusion clauses that are
known as frustrated. This is a common law principle and the courts
generally used would be regarded as reasonable. [Röhlig (UK) Ltd
apply it as narrowly as possible. However, a recent case has placed
v Rock Unique Ltd (2011)]
this back on the agenda for sole traders and those contracting with them.
In this particular case property owners entered into a contract
The basic position is always that the wording of a special resolution
with a sole trader for him to provide construction services. The
may not be amended at the meeting held to pass it or subsequently.
sole trader was well known to them and had worked for them
However, the Courts have recently held that a typing error could be
and their relatives previously. During the work he suffered a heart
overlooked where it was apparent from the other text of the
attack and on medical advice did not return to work. No
resolution, when read with an accompanying circular, what the
arrangements were made by him to get anyone else to complete
correct number of shares was meant to be. Further, in this case
the work, which remained unfinished.
the error was notified to the chairman of the meeting and the members agreed at it that the resolution should be read as relating
The property owners issued a claim for damages and the sole
to the correct figure and the minutes so stated. [ReUniq Plc]
trader contested that the contract was frustrated by reason of his own ill health. The High Court held that, due to the relationship
Uncertainty of Restriction
of trust built up between the parties, the contract was a personal
A service agreement included a post-termination restriction
contract and only the sole trader could fulfil it. Sub-contracting
enforcing an area of restraint simply described as two named
the job was inconsistent with the personal relationship and so
counties and “those parts of the United Kingdom to the south
the contract was frustrated by the sole trader’s ill health.
thereof ”. It was held that this was too uncertain to be
When entering into arrangement with a sole trader it would, in light
enforceable. In addition, it was also held that the place at which
of this case, be sensible to expressly state what will happen if he is
the business was operated was also uncertain as it was not clear
unable to continue providing the services. [Atwal v Rochester (2010)]
whether or not it covered any place at which services were provided to a customer. The judgement emphasises the need
for such restrictions to be carefully worded for the purposes of
A recent case has looked at the reasonableness of set-off
certainty as well as reasonableness. [Landmark Brickwork Limited
provisions in standard contracts. A had engaged B, a freight
v W Sutcliffe & Others]
forwarder, to deliver sandstone from India to the UK on B’s standard conditions of sale, which incorporated a clause which
Management Committees A dispute arose between shareholders as to how the affairs of a
overcharged it and tried to set the amount allegedly overcharged
company should be managed. It was held that a management
off against outstanding invoices.
committee was not properly appointed and thus there could be
excluded the remedy of set-off for all claims. A claimed that B had
Recent Cases continued
no binding effect on the company flowing from any of the decisions
affairs of a company. As it was not practicable to leave that to the
made by it. The management commitee did not have the right to
members in this case the Court gave directions as to the holding of
make changes to the Articles of Association. It is always for the
elections and who could vote [G Hussaain v Wickham Islamic
members to do that and the Articles of Association will govern the
Mission and Mosque Trust Limited and others].
appointment of a board of directors in authority to manage the
Latest News Our Education and Charity Teams are expanding to provide new
Lydia Brookes as a solicitor in the Education Team. Lydia trained at
capacity to meet the increased demand for independent legal
Clifford Chance and qualified as a solicitor 4 years ago.
advice in the education sector. New solicitors who have just joined us or are joining us in the next 2 months include:
Rishi Mital as a solicitor in the Education Team. Rishi qualified as a solicitor with niche education firm Match solicitors 3 years ago
Graham Burns as a partner in the Education
and worked with them specialising in operational issues for
Team. Graham has been an education lawyer
for over 20 years, working first with national firm Eversheds and later in his own niche firm TPP Law, principally in the public sector
Reema Mathur as a solicitor in the Charity Team. After training at City firm Clifford Chance and a period at Withers doing banking law.
acting for local government and most recently in establishing academies.
Darren Hooker as a solicitor in the Charity Team. Having trained with Stone King Darren has recently qualified.
Nicola Berry as a solicitor in the Education Team. Nicola trained at TPP Law and has acted as principal assistant to Graham Burns.
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