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CONTENTS 1–2 Website Contracts and Policies

Business View

2

Royal Wedding Memorabilia

2

Companies House - Change of Fees

2

Bribery Act 2010 - Guidance Released

3–4 Recent Cases 4

Latest News

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:

Privacy Policy This deals with the collection, storage and use of personal data. Such a policy is required if, for example, you have a website which collects basic, non-sensitive personal data (for example, a

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

marketing information.

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.

property rights.

If you have a website used by children or you collect sensitive personal

Terms of Website Use

information then your policy needs to be adapted in such way that explicit consent is obtained to any processing of personal data. A privacy policy should be displayed, or be accessible, at all points

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

of viruses.

the purposes of such processing.

◆ restrict any unauthorised reproduction of material on the site;


Website Contracts and Policies continued

Terms and Conditions of Supply

address including:

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.

Special Resolutions

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

Set-Off

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

education clients.

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.

Your Contacts Roy Butler Partner

email: rab@stoneking.co.uk

Caroline Leviss Associate

email: crl@stoneking.co.uk

Stone King LLP 13 Queen Square Bath BA1 2HJ Tel. 01225 337599 Fax. 01225 335437 16 St John’s Lane London EC1M 4BS Tel. 020 7796 1007 Fax. 020 7796 1017 Wellington House East Road Cambridge CB1 1BH Tel. 01223 451070 Fax. 01223 451100 New Hall Market Place Melksham Wiltshire SN12 6EX Tel: 01225 337599 Fax 01225 335437

www.stoneking.co.uk email: corporate&commercial@stoneking.co.uk

© Stone King LLP 2011

Our policy when giving commentary and summaries on a non-specific basis is that we do not assume liability for the accuracy of any particular statements. Stone King LLP - registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ

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